IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 OP (FC).No. 2262 of 2011(R) --------------------------- (AGAINST ORDER DATED 1/7/2011 IN I.A.1422/2011 IN OP(GW) NO: 425/2011 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER ------------------------------ BINEESH V., S/O. VIKRAMAN PILLAI, PILLA VEEDU, THEKKE MURI, EAST KALLADA P.O., EAST KALLADA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) RESPONDENT: ---------------------- PRASANNAKUMARI AMMA, D/O. SAROJINI AMMA, ANCHUTHUNDIL VEEDU, MANAKKARA, SASTHAMCOTTA P.O., KUNNATHOOR TALUK, KOLLAM, PIN-690 521. THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: A TRUE COPY OF THE O.P(GW) NO: 425/2011 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOTTARAKKARA CLAIMING PERMANENT CUSTODY OF THE MINOR WARD NIRANJANA KRISHNA EXT.P2: -DO- OF THE I.A.NO: 1422/2011 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT EXT.P3: -DO- OF THE PETITION DT. 1/7/2011 SUBMITTED BY THE PETITIONER BEFORE THE FAMILY COURT, KOTTARAKKARA, TO KEEP IN ABEYANCE INTERIM ORDER DT. 1-7-2011 IN I.A.NO: 1422/2011 EXT.P4: -DO- OF THE OBJECTION DT. 2/7/2011 IN I.A.NO: 1422/2011 SUBMITTED BY THE PETITIONER EXT.P5: -DO- OF THE JUDGMENT DT. 5TH JULY 2011 IN O.P(FC) NO: 2124/2011 PASSED BY THIS HON'BLE COURT EXT.P6: -DO- OF THE ORDER DT. 1/7/2011 IN I.A.NO: 1422/2011 IN O.P(GW) NO: 425/2011 PASSED BY THE FAMILY COURT, KOTTARAKKARA RESPONDENT'S EXTS: EXT.R1(A): TRUE COPY OF THE CONSENT LETTER DT. 18-2-2011 EXT.R1(B): -DO- OF THE ORDER NO: A2-5722/11 DT. 9-5-2011 ISSUED BY THE TAHSILDAR, KUNNATHOOR TO THE DAUGHTER-IN-LAW OF THE RESPONDENT EXT.R1(C)-DO- OF THE CERTIFICATE ISSUED FROM PADMAVATHY MEDICAL FOUNDATION,SASTHAMKOTTA, KOLLAM DT. 1-8-2011 TO THE PETITIONER. Jj /TRUE COPY/ THOTTATHIL B. RADHAKRISHNAN & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ O.P(FC)NO: 2262 OF 2011 ----------------------------------------------------------- Dated this the 9th August, 2011. JUDGMENT Thottathil B. Radhakrishnan, J. This original petition is against an interim order regulating the custody of a girl child, hardly three years old by now and bereaved of her mother, lost to cancer within the last one year. 2. The maternal grandmother applied for custody proceedings making clear allegation that the child's father is habitual in consumption of alcohol. She has made specific statements in the original petition before the Family Court about situations evidencing withdrawal symptoms. 3. Though the allegations against him are refuted by the father of the child, he who was an Advocate has now obtained job as a clerk in the Kerala State Road Transport Corporation on compassionate grounds referable to the unfortunate death of his wife. His mother-in-law gave him consent for that and also to collect the family pension due on account of the wife' death. O.P(FC) 2262/2011 2 4. The maternal grandmother of the child is employed as a Post Master. Her son works for the revenue department. Her daughter-in-law also works for the revenue department. The marriage between the parents of the child was an arranged one. There are some statements in the original petition filed by the maternal grandmother before the court below as to entrustment of a car and also about quantity of ornaments and other funds which were dealt with in relation to the marriage. We do not express anything on that, but notice such averments only indicate that the maternal grandmother of the child has the necessary means to look after the child even without the support of its father, the petitioner herein. 5. As noted in our order dated 18-7-2011 referring this case to mediation, the unfortunate victim of the situation is the girl child who was 2 ½ years old who, with God's blessings carry a sweet name 'Niranjana Krishna'. In the interest of that child we want the petitioner, its father, to mend his ways at the earliest and then report to the Family Court within an outer O.P(FC) 2262/2011 3 limit of nine months from now, offering to subject himself to a medical examination as regards alcohol dependence. 6. We are not satisfied with the Family Court's order that the maternal grandmother could have the child's custody for one month in one go, to be followed by similar custody by the father of the child, for the succeeding month. There is no challenge before us by the maternal grandmother on this count. The original petition is by the child's father. Yet in jurisdiction of this nature, which is essentially parens patriea, we are of the firm view that the interest of the child is not secured by the order issued by the court below. As of now, we cannot risk the custody of the girl child be even for one day, with its father though the father has to be given necessary opportunity to visit the child in its maternal grandmother's home. We do not find any allegation on record accusing the maternal grandmother of being incompetent to take care of the affairs of the child, apart from the statement that she is employed and would not therefore find time to look after the child. We are not impressed by that contention by the father, who is also employed. The O.P(FC) 2262/2011 4 grandmother would necessarily take care of the grandchild with all care and love that has to be showered on that child. 7. For the aforesaid reasons, we modify the impugned order and direct as follows:- i) The petitioner shall make available the child before the Family Court, without fail, at 11 a.m on 12-8-2011 and the Family Court will hand over custody of the child in terms of this order to the maternal grandmother who is the respondent before us. ii) The petitioner/father will be entitled to visit the child in its maternal grandmother's home on any evening after the maternal grandmother reaches home. We are sure that he would be a welcome visitor for the time being and would evolve to be a responsible father who would get not only the love of the child, but also the recognition of the mother-in-law and other relatives of the unfortunate woman who had died at a young age, leaving behind him and the daughter. iii) We further direct that the aforesaid arrangement shall continue until otherwise ordered by the Judge of the Family O.P(FC) 2262/2011 5 Court, which may be in due course, taking into consideration all the aforesaid matters, including the necessity to ensure an assessment of the father in the lines indicated in this judgment if he were to be given custody of the girl child. Original petition is ordered accordingly. Communicate to court below. THOTTATHIL B. RADHAKRISHNAN Judge K. SURENDRA MOHAN Judge jj O.P(FC) 2262/2011 6