IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 22807 of 2010(R) -------------------------- AGAINST THE ORDER DATED / / IN IA 825/2010 IN OPG&W.808/2009 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): --------------- RAJESH RAJAGOPAL, AGED 38 YEARS, S/O. LATE N.RAJAGOPAL, LAKSHMI NIVAS, KANKATHUMUKKU, THIRUMULLAVARAM P.O., KOLLAM-12. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.N.SASIDHARAN NAIR RESPONDENT(S): --------------- BINDU V., D/O. VISHWANATHAN, 'BINDU', TC 13/552, K.V.29, KALAVIHAR NAGAR, KUNNUKUZHI, VANCHIYOOR P.O., THIRUVANANTHAPURAM. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No. 22807 of 2010-R ------------------------------------------------- Dated this the 13th day of August, 2010 JUDGMENT Basant,J. This writ petition is filed by the petitioner to challenge Ext.P7 order. Parties are spouses and the bone of contention is a 9 year old autism afflicted male child. The child is now in the custody of the respondent/mother, who is employed as an Engineer in the B.S.N.L. and is now working at Thiruvananthapuram. The petitioner herein is the Lecturer in a Government Law College and is now working at Ernakulam. The petitioner had filed an application as O.P.(G&W) No.808/09 before the Family Court, Thiruvananthapuram. He had, in that original petition, filed an application for interim custody of his minor son - `Arjun Rajagopal’ is the name of the child. The learned Judge of the Family Court, after a detailed evaluation of the rival contentions, came to the conclusion that the petitioner’s W.P.(C) No. 22807 of 2010 -: 2 :- request for interim custody cannot be accepted. However, the learned Judge permitted the petitioner to visit his child on the first and third Saturdays of every English calendar month between 10 a.m. and 12 noon in the presence of the Sheristadar of the court. 2. The petitioner claims to be aggrieved by the impugned order. He submits that the custody must have been given to him completely till the disposal of the O.P. The petitioner is employed at Ernakulam and he is residing alone at Ernakulam, admittedly. The respondent is residing at Thiruvananthapuram along with the child and the parents of the respondent. We find absolutely no merit in the challenge against the direction that the child must continue in the custody of the respondent. 3. The learned counsel for the petitioner submits that grant of custody for two hours only in the presence of the Sheristadar is too unjust, unfair and inadequate. The petitioner, who is the father of the child, does not get adequate opportunity to interact with the child. During 10 a.m. to 12 noon, mostly the child is sleepy and the quality of interaction possible during that short period of time is extremely poor and low. In these circumstances, the learned counsel for the petitioner prays that the petitioner may be given overnight custody of the child, at W.P.(C) No. 22807 of 2010 -: 3 :- least, for one day every month. 4. The prayer is vehemently opposed by the learned counsel for the respondent. The learned counsel for the respondent submits that the child needs the custody and support of the mother. The mother and her parents are looking after the child all these years. Medicines have to be administered promptly. The child is not even able to look after itself. The child answers calls of nature involuntarily and the child will have to be cleaned and taken care of. In these circumstances, it is submitted that the impugned order may be permitted to remain in force and the same may not be modified. 5. When we heard the learned counsel in the Court, we felt that both parties being educated and well qualified, it must be possible for the parties to work out a harmonious better arrangement regarding interim custody/visitorial rights. We therefore directed that the parties must appear before this Court. Accordingly, the parties have both appeared before us. We have spent a long time interacting with the parties in the presence of their counsel. We must say that our interactions convince us that both parties are not amenable to reason and they do not appear to really want any harmonious settlement. Though we did attempt to persuade the parties to settle all their W.P.(C) No. 22807 of 2010 -: 4 :- outstanding disputes harmoniously, we find that neither we; nor their counsel are in a position to persuade them to come to any such settlement. We have hence given up the attempt to persuade the parties to comprehensively settle all their outstanding disputes harmoniously. 6. Thereafter, we pointedly tried to explore the possibilities of a harmonious arrangement regarding custody/visitorial rights in respect of the child. We find that, after laborious attempts on the part of their counsel and us, parties seem to agree on the following modalities/arrangements. Accordingly, we direct that until further orders, the parties shall follow the directions given below as virtually agreed upon between them: (i) On the first and third Sundays of all English calendar months the child shall be handed over to the custody of the petitioner by the respondent at the Family Court at 10 a.m. When the petitioner goes to take the child, he shall take with him his mother who, it is admitted, is a retired Civil Surgeon Grade-I. (ii) It is agreed and directed that the petitioner and his mother shall not take the child to any place outside the City of Thiruvananthapuram. (iii) It is agreed that the respondent, when she hands over the child to the petitioner and his mother, shall give a list of W.P.(C) No. 22807 of 2010 -: 5 :- medicines specifying time at which they must be administered to the child while the child is in the custody of the petitioner. (iv) It is agreed that the petitioner and his mother shall scrupulously comply with such prescription regarding administration of medicine. (v) It is agreed that the petitioner and his mother shall be at liberty to take the child to any one temple/mosque on every such first and third Sundays. Thereafter, they shall take the child to a place of rest. It is agreed that before taking the child every time, the place of rest where the child will be taken to take rest shall be specified in advance by the petitioner. Information about such place of rest shall be given to the respondent before taking over the custody of the child on that day. (vi) The child shall be returned by the petitioner to the respondent at the Family Court before 4 p.m. on such date. (vii) The Family Court shall make appropriate arrangements on every first and third Sundays to ensure that the custody of the child is taken over by the petitioner and returned to the respondent at 10 a.m./4 p.m. in the presence of a responsible official/employee of the Family Court. (viii) The Family Court shall monitor and supervise the due compliance of the above directions. It shall be open to the W.P.(C) No. 22807 of 2010 -: 6 :- Family Court to issue appropriate directions from time to time. Any party having a grievance can move the Family Court in the matter. We further direct that if this arrangement works satisfactorily, the parties can move the Family Court for further modification of the conditions after elapse of a period of six months from this date. (ix) The petitioner graciously agrees that all bills paid by the respondent for the treatment of the child shall be reimbursed by him to the respondent if she hands over such bills to the petitioner when the child is handed over as directed above. This payment shall be in addition to the payment of Rs.2,500/- per mensem as already ordered by the court under the Protection of Women from Domestic Violence Act. If such payment is not made, the Family Court shall be at liberty to direct discontinuance of this arrangement. 7. This writ petition is accordingly allowed in part to the above extent. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge