IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WP(C).No. 3920 of 2008(S) ------------------------- AGAINST THE ORDER IN IA 202/08 IN OP.118/2008 of FAMILY COURT,THIRUVANANTHAPURAM .................... PETITIONER/PETITIONER: ------------ ALEX FRANCIS ,S/O.K.P.FRANCIS ALEX BHAVAN, MITRANIKETAN PO, VELLANAD, NEDUMANGAD 695 543. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT/RESPONDENT: ------------- JOYEES.V.CHACKO, D/O.ELIAMMA CHACKO "NAHAN" KKV/559-C ELIPPAKUZHY LANE SAINIK SCHOOL PO, KAZHAKOOTAM, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the order of the Superior Court of Justice Family Division at Canada dated 19/12/03. Ext.P2: True copy of the order dated 1/10/07 by the Superior Court of Justice family Court Branch at Canada. Ext.P3: True copy of OP(G&W) 118/08 before the Family Court, Thiruvananthapuram. Ext.P4: True copy of IA 202/08 in OP 118/08 on the files of the Family Court, Thiruvananthapuram. RESPONDENT'S EXHIBITS: NIL. KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- W.P.(C) NO. 3920 OF 2008 ---------------------------------------------------------------- Dated this the 6th day of February, 2008 JUDGMENT Harun-Ul-Rashid, J. This Writ Petition is filed with the following prayer: “For these and other grounds to be urged at the time of hearing, it is humbly prayed that this Hon'ble Court may be pleased to direct the Family Court, Thiruvananthapuram to dispose of IA No.202/08 in O.P.No.118/08 on its files as expeditiously as possible enabling the petitioner to have a limited custody of his children before 8/02/08.” 2. The petitioner is the father of the two female children by name Natasha Ruth Alex, aged 12 years and Hannah Elizabeth Alex, aged 10. The respondent is the former wife of the petitioner and the mother of the children. The marriage between the petitioner and the respondent ended in divorce as per order dated 19.12.2003 of the Superior Court of Justice, Family Division at Canada. The respondent has remarried and has a child in the second marriage. W.P.(C)NO.3920/2008 2 3. The Superior Court of Justice, Family Division, Canada had passed orders whereby arrangements were made for the custody of the children. Now, the respondent along with her children have come down to Kerala and it is submitted that she intends to settle down in Kerala. The petitioner is working in Canada. He has come down to India on 19.1.2008 on a short visit and proposes to leave for Canada on 8.2.2008. In the meanwhile, he sought custody of the children for a short period in O.P.No.118 of 2008 filed before the Family Court, Thiruvananthapuram. Since no orders were passed on the petition for interim custody and since the petitioner had to leave for Canada on 8.2.2008, he approached this Court seeking a short custody of the children. The paternal grandmother also expressed her desire to meet the children. According to her, she had not seen the children for the last seven years. In such circumstances, this Court passed an interim order dated 4.2.2008 permitting the petitioner to take his two children so that he and his mother can spend two days with them. 4. The parties are present today. It is reported that the children stayed happily with the petitioner and his mother for two days. Today also we interacted with the petitioner, respondent, the children and their W.P.(C)NO.3920/2008 3 paternal grandmother. The parents of the children submitted that custody of the children may be settled without dragging them to future litigations. We understand that the petitioner is permanently working in Canada and goes to India during holidays. For a permanent solution, we direct that the petitioner/father shall have custody of his two children for three days a month while he is staying in Kerala. The custody shall be arranged by the parties without affecting the studies of the children. It is made clear that the petitioner shall inform the respondent about his programme in Kerala in advance, at least ten days prior to his visit. He shall also inform the petitioner the dates on which he wants the custody of his children, at least a week before the dates. We have also talked to the grandmother of the children, Smt.Susamma Francis, aged 72 years. She was very happy to meet her grand children. She submitted before us that the petitioner is her only son and his children are her only grand children and that considering her age, she would like to meet the children every month at least for half an hour. Under such circumstances, Smt. Susamma Francis is allowed to go over to Thiruvananthapuram, take the children out and spend three hours with them every month, provided that such visits are during holidays. Visitorial right is granted to the petitioner only on condition that the petitioner pays regularly the maintenance ordered by the Superior Court of Justice, Family Division, Canada without any default. If W.P.(C)NO.3920/2008 4 the agreed terms are violated, either party may approach this Court for appropriate orders. In the nature of the decision we have taken, there is no necessity for the parties to pursue O.P. No.118 of 2008 pending before the Family Court, Thiruvananthapuram, since the disputed issues have been settled. The said Original Petition is hence struck off from the file of the Family Court, Thiruvananthapuram. The Writ Petition is disposed of as above. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ W.P.(C)NO.3920/2008 5 KURAIN JOSEPH & HAURN-UL-RASHID, JJ. W.P.(C)NO. 3920/2008 JUDGMENT 6TH FEBRUARY, 2008