IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 5881 of 2010(R) ------------------------- AGAINST THE ORDER DATED / / IN IA.5125/2009 IN OP.888/2004 of FAMILY COURT,ERNAKULAM .................... PETITIONER(S): --------------- ANNIE, D/O.VARGHESE, NEELIMA CLASSICS, KANJIKUZHI, KOTTAYAM DISTRICT. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): --------------- V.J.A.RICHARD, S/O.JACOB, VELIKAKATH HOUSE, EDA COCHI, ERNAKULAM DISTRICT. ADV. SRI.SUBAL J.PAUL SMT.SHEEBA SUBAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No. 5881 of 2010-R ------------------------------------------------- Dated this the 2nd day of June, 2010 JUDGMENT Basant,J. Parties to this writ petition are divorced spouses. The bone of contention is the custody of a girl child now aged about 12 years. About the custody of the said minor child, Ext.P1 judgment dated 19/6/07 in M.F.A.No.19/07 and Mat.A.No.210/07 passed by this Court holds the field. 2. The child is now in the custody of the mother and the directions in the said judgment - Ext.P1 is that the father shall have the custody of the child during all vacations as also the second Saturdays and the following Sundays. 3. It is admitted that the father, considering the difficulties of the child and the distance that has to be traversed, is not invoking his right for the custody during the second Saturdays and W.P.(C) No. 5881 of 2010 -: 2 :- the following Sundays. During the entire vacations, the child is in the custody of the father. 4. Immediately prior to the December - Christmas vacation, 2009, the mother filed an application before the Family Court to modify the conditions in Ext.P1 judgment. The child was about to attain puberty. The mother apprehended that the custody of the child if handed over to the father during that Christmas vacation, the child will not have any female members to attend on her during the onset of puberty. The Family Court by Ext.P4 order dated 21/12/09, allowed the said application in part. Later, by Ext.P5 order dated 26/12/09, the said order was modified and Ext.P1 judgment stood restored. 5. The petitioner/mother is aggrieved by Exts.P4 and P5 orders. According to the learned counsel for the petitioner, the prayer made him was not relating to the custody during December vacation 2009 alone; it was really to modify Ext.P1 judgment . In Exts.P4 and P5 orders this prayer has not been considered by the Family Court. It is hence prayed that those orders may be interfered with invoking the jurisdiction under Art.227 of the Constitution and appropriate directions may be issued. Ext.P1 directions may be realistically modified, it is W.P.(C) No. 5881 of 2010 -: 3 :- prayed. 6. The learned counsel for the respondent opposes this writ petition. Ext.P4 order has not been challenged earlier. In these circumstances, if the petitioner/mother wants to challenge Ext.P4 order, she must have preferred a regular Mat. Appeal, it is contended. 7. We find no merit in this first objection raised. The petitioner has actually come before this Court with the grievance that hes application - I.A.No.5125/09 has not been properly considered. It is non-consideration of I.A.No.5125/09 properly which is assailed in this writ petition. We find force in that contention. I.A.No.5125/09 has not been considered properly. In these circumstances, the objection raised to jurisdiction is turned down. Even otherwise assuming that there is merit in that objection, we are satisfied that in the nature of the facts and circumstances of this case the said technical objection can be overlooked and the matter can be disposed of on merits. 8. There was a suggestion that the parties can be persuaded to settle their disputes. It was also prayed that the wishes of the child may be ascertained. Accordingly, we interacted with the father, mother, paternal grandmother and W.P.(C) No. 5881 of 2010 -: 4 :- the child in the Chamber. Though there was agreement on certain aspects, no comprehensive settlement could be reached. Parties preferred an order of this Court to any agreed upon order. 9. It is conceded at all hands that the custody ordered on the second Saturdays and the following Sundays is not being availed of by the father. We are, in these circumstances, satisfied that the said stipulation of custody of the child by the father during the second Saturdays and the following Sundays can be set aside. 10. What remains is only the contention that the child must not be given to the custody of the father as the child has already attained puberty. We find no merit whatsoever in this objection. The respondent is the father of the child. He has his mother i.e., the grandmother of the child with him. It would be idle to assume that the father is not entitled to custody of a minor child for the reason that she has attained puberty. Attainment of puberty is a most natural and ordinary event in the life of the girl and that cannot definitely operate as a reason to deny the father of his right to custody of the child. The said objection cannot hence be accepted. W.P.(C) No. 5881 of 2010 -: 5 :- 11. However, we take note of the submission of the learned counsel for the petitioner that in the house of the father there would be no female members and that this would cause great difficulty for the child, especially so as the young child will have to manage herself during her menstrual periods. The father of the child assures this Court that whenever he takes the custody of the child, his mother i.e., the grandmother of the child will be with him. She will be with him throughout the period when child is in his custody. The paternal grandmother agrees to this. We accept that undertaking and in these circumstances, the said objection raised by the petitioner also pales into insignificance. 12. What remains is only the dispute regarding the custody of the child during vacation. There is a dispute as to what can be reckoned as a vacation. We think it better to clarify that all breaks in the school curriculum where the child is not obliged to go to school for seven consecutive days shall be reckoned as vacation. There is a dispute between the father and the mother as to whether there is Onam vacation for the school or not. The above clarification, we are satisfied, shall set that controversy to rest. W.P.(C) No. 5881 of 2010 -: 6 :- 13. Admittedly, there are Pooja, Christmas and summer vacations of 10, 10 and 50 days respectively. The learned counsel for the petitioner/mother submits that the mother is deprived of the opportunity to have any interactions with the child during vacations. During working weeks, the opportunity for leisurely interactions between the mother and the child is limited and in these circumstances, the child having grown up and the demands of her educational curriculum being what it is, the mother may be given some time to interact with the child during such vacations. We find merit in this contention of the mother. It is true that the mother is keeping the custody of the child throughout the year except vacations. The quality of interactions between the mother and the child would be substantially different during vacations and during workings days. In these circumstances, we are satisfied that directions can be issued about the custody of the child during vacations. We are satisfied that a direction can be issued that wherever the vacation does not exceed 10 days, the last 3 days of the vacation the child will be in the custody of the mother and till then in the custody of the father. All vacations where number of days exceed 30 days, the child shall be in the custody of the mother W.P.(C) No. 5881 of 2010 -: 7 :- during the last 10 days and in the custody of the father for the entire remaining period. 14. The learned counsel for the petitioner submits that the school assignments that the child is expected to comply during vacation are not being complied with properly as the father is not paying due attention to that. We need only observe that the respondent/father must ensure that during the time that the child is with him during vacations the child attends to the school assignments. 15. Both sides agree and it is directed that the child shall be taken by the father from the school and shall be returned to the school. The learned counsel for the petitioner submits that the petitioner finds it embarrassing that the divorced husband/ the respondent herein should visit her house in the name of the custody of the child. The learned counsel for the respondent immediately submits that the respondent does not want to go to the house of the petitioner. According to him, even now the child is being taken from the school and returned at the school. The same arrangement can continue. The learned counsel for the petitioner wants to clarify and it is clarified that if the date on which the child is to be returned by the father happens to be W.P.(C) No. 5881 of 2010 -: 8 :- a holiday for the office of the school, the child can be returned on the next working day morning. 16. This writ petition is, in these circumstances, allowed to the above extent. Needless to say, if there are compelling change of circumstances, the parties shall be at liberty to approach the Family Court for further modification of the directions. R. BASANT (Judge) M.C. HARI RANI (Judge) Nan/ W.P.(C) No. 5881 of 2010 -: 9 :-