IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 15664 of 2009(R) -------------------------- OP.542/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): --------------- 1. JUMANA, AGED 14 YEARS, D/O.KHAIRUNNEESA, KAKKOOTH P.O., PERINTALMANNA TALUK, MALAPPURAM DISTRICT. 2. JUVARIA, AGED 16 YEARS, D/O. -DO-, R/AT -DO- 3. KHAIRUNNEESA, D/O. KALLINGAL ABDU, KAKKOOTH P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. (MINOR PETITIONERS 1 AND 2 REP.BY MOTHER KHAIRUNNEESA, THE 3RD PETITIONER) BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON RESPONDENT(S): --------------- ABDURAHMAN AMBATTUPARAMBIL, S/O. AMBATTUPARAMBIL ABDULLA, VALLUVANADU STREET, KATTILATHANI, NEAR MUSLIM LEAGUE OFFICE, MANNARKKAD P.O. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(C)No.15664 OF 2009 ----------------------------------------------------- DATED THIS THE 8th DAY OF JUNE, 2009 J U D G M E N T Basant, J. Petitioners are two minor children aged 14 years and 16 years and their mother, the divorced wife of the respondent herein. The children are residing with the mother. The husband/respondent herein had filed an application for custody of the children. That proceedings which was pending as O.P.No.542/08 before the Family Court, Malappuram was disposed of on consent as per Exhibit P2 order dated 3.11.2008. Joint statement was filed by the 3rd petitioner herein and the respondent. Accordingly, children continued in the custody of the 3rd petitioner subject to the visitorial right admittedly conceded to the respondent herein. 2. The respondent allegedly attempted to insist on compliance with Exhibit P2 order on 7.5.2009. The children did not go with the respondent/husband. He then went to the Family Court and filed a petition on 8.5.2009. Notice was ordered. Parties appeared on 20.5.2009. On that date, the learned Judge of the Family Court directed that the children who are produced must go W.P.(C)No.15664/09 -2- with the respondent in terms of the consent order Exhibit P2. Accordingly, the court entrusted the children to the custody of the father on 20.5.2009. The children continued in his custody till 31.5.2009. Thereafter, the children have been returned to the mother. They are now with the mother. They along with the mother have now filed this Writ Petition. 3. What is the grievance of the petitioners? The learned counsel for the petitioners submits that the father who had secured Exhibit P2 order dated 3.11.2008 had not sought compliance of the order till 7.5.2009. He filed a petition on 8.5.2009 and when the children were produced in response to the notice issued by the Court, they were by force given over to the custody of the father. This procedure is incorrect. The wishes of the children were not ascertained. The mother was not permitted to advance her contentions. In these circumstances, the impugned order which is not a speaking order is liable to be interfered with, contends the learned counsel for the petitioners. 4. We find no merit in the grievance raised. It was an order passed on consent and the 3rd petitioner must have made necessary arrangements to hand over the custody of the children to W.P.(C)No.15664/09 -3- the father. The fact that the father did not insist on compliance with the order from 3.11.2008 to 8.5.2009 is to feeble a reason to persuade us to interfere with the impugned order. 5. The first contention raised is that the 3rd petitioner was not given opportunity to advance her contentions. What is the contention that she wanted to raise and be considered? The only contention is that the husband had not insisted on compliance of the consent order from 3.11.2008 to 8.5.2009. We have already held that, that gap of time does not at all persuade us to interfere with the order. That gap of time does not also justify the grievance of the 3rd petitioner, who had consented to Exhibit P2 order earlier. 6. The only other contention raised on behalf of minor petitioners 1 and 2 is that their wishes were not ascertained. While passing Exhibit P2 order, certainly the court must have considered the welfare of the minors. Children are minors aged 14 and 16 years respectively. We are not satisfied that for complying with the order passed in Exhibit P2, further consent/response/willingness of minors need be ascertained by the court. For that reason also, the impugned order cannot be assailed. We must alertly note and state that we deem it to be the duty of the mother, the 3rd petitioner W.P.(C)No.15664/09 -4- herein, to ensure that the children in her custody are prepared mentally to comply with the order so that the consent order Exhibit P2 can be swiftly complied with and enforced. If she is not able to have even that much of beneficial influence on the minor children, we must certainly feel that, she may not succeed, in discharging her duties as a guardian properly. Trauma should not be inflicted on children in respect of the implementation of the visitorial rights/ temporary custody rights given to the parents. Responsibility rests heavily on the shoulders of the person in whose custody the children are to prepare the children to comply with the consent order and facilitate execution of visitorial rights with felicity causing least trauma to the children. At any rate, we are satisfied that the impugned order does not warrant interference invoking the extraordinary jurisdiction vested in us under Article 227 of the Constitution of India. 7. This Petition is accordingly dismissed. R.BASANT, JUDGE. dsn M.C.HARI RANI, JUDGE. W.P.(C)No.15664/09 -5- dsn