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 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 32842 of 2009(R) -------------------------- I.A. NO. 3936/209 IN OP.754/2009 of FAMILY COURT,ERNAKULAM .................... PETITIONER: --------------- ELIZABETH MATHEWS, AGED 33 YEARS, D/O.JACOB, VAZHIYAMBALATHIL HOUSE, KONNI, PATHANAMTHITTA. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN RESPONDENTS: --------------- 1. PAUL PALLICKAL, AGED 40 YEARS, S/O.P.P.VARGHESE, PALLICKAL HOUSE, THANNIPUZHA, OKKAL P.O., ERNAKULAM-683 550. 2. ABRAHAM VARGHESE PALLICKAL, S/O.P.P.VARGHESE, PALLICKAL HOUSE, THANNIPUZHA, OKKAL P.O., ERNAKULAM-683 550. ADV. SRI.GEO PAUL FOR R1 SRI.SANU MATHEW FOR R1 SRI.NOEL JOSEPH FOR R1 SRI.K.V.REJANISH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 32842/2009 APPENDIX: PETITIONER'S EXTS: EXT.P1: COPY OF THE ORDER DATED 2-6-09 IN I.A. NO. 2101/209 IN O.P. NO. 754/09 OF THE FMAILY COURT, ERNAKULAM. EXT.P2 DT. 22-6-2007 – COPY OF THE 'AUDIOLOGY REPORT” GIOVEN BY HEAD AUDIOLOGIST, UNITED HOSPITAL SYSTEM. EXT.P3: DT. 10-7-2007 COPY OF AUDIOLOGY EVALUATION ISSUED BY CHILDREN'S HOSPITAL OF WISCONSIN. EXT.P4: DT. 15-8-2007 COPY OF AUDIOLOGY EVALUATION ISSUED BY CHILDREN'S HOSPITAL OF WISCONSIN. EXT.P5: COPY OF CERTIFICATE ISUED BY CHLDRN'S HOSPITAL OF WISCONSISN. EXT.P6: COPY OF CERTIFICATIE ISSUED BY CHILDREN'S HOSPITAL OF WISCONSIN. EXT.P7: DT. 12-10-2009 COPY OF INTIMATION FOR AN APPOINTMENT AT MASTEMRS FAMILY SPEECH AND HEARING CENTRE AT CHILDREN'S HOSPITAL, WIZSCONSIN. EXT.P8 DATED 5-10-09 COPY OF THE ELTTER BY DR. IDICULLLA MATHEW LAKESHORE HOSPITAL, ERNKAULAM. EXT.P9: DT. 50-10-2009 COPY OF THE OPINION GIVEN BY DR. MATHEW DOMINIC MEDICAL TRUST HOSPITAL, ERNAKULAM. EXT.P10; DT. 12-11-2009 COPY OF CERTIFICATE ISSUED BY DR.BINI FAISAL ASSOCIATEE PROFESSOR, AMIRITA INSTITUTE OF MEDICAL SCIENCES, ERNKAULAM. EXT.P11: 21-10-20099 COPY OF ORDER IN I.A. NO. 3936/2009 IN O.P. NO. 754/2009 OF FAMILY COURT, ERNAKULAM. KS. TRUE COPY P.S. TO JUDGE R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 32842 OF 2009 ============================ DATED THIS THE 4TH DAY OF DECEMBER 2009 JUDGMENT Basant,J. The unfortunate dispute raised in this writ petition is about the custody of a minor child aged less than three years and the dispute is between its parents, who have an estranged relationship. By interim order passed in I.A.No.2101/2009 in O.P. No. 754/2009, the child is now in the custody of the relatives (parents/brother) of the petitioner in the O.P., i.e. the husband. The child has a congenital hearing defect. The child is undergoing therapy for such inadequacy/defect. By the interim order dated 21-6-2009, it has been directed that the petitioner herein,i.e.the mother of the child when she is in India can take the child to her house and bring back the child without disturbing therapy. The first grievance raised by the petitioner herein is that the said condition is not being observed by the relatives of WPC.32842/2009 -2- the respondents herein, i.e. father and the relatives of the father of the child who are keeping custody of the child. 2. In response, the learned counsel for the respondents submits that the child has to attend therapy on all Mondays, Tuesdays, Wednesdays and Thursdays. Every morning on these four days the child has to appear for therapy in the hospital. The petitioner resides at Thiruvalla and the child is taking the therapy near Alwaye. According to the relatives of the respondents, it is practically impossible to handover the child every day to the petitioner herein and permit her to take the child Thiruvalla. The therapy would then be interrupted. However, the learned counsel for the respondents submits that the child can be handed over every week after therapy on Thursdays. It is enough, if the child is returned on the morning of all Mondays. We accept that submission. We direct that the child be handed over to the petitioner herein by the respondents at 3 p.m. on all Thursdays on condition that the child shall be returned on the morning of all Mondays by 8.30 a.m. WPC.32842/2009 -3- 3. The controversy on the above aspect is thus resolved as agreed by both sides. Today, the child shall be handed over at 3 p.m.to the petitioner-mother at the Family Court and that is agreed upon. The learned counsel for the petitioner submits and the learned counsel for the respondents accepts that the petitioner can take the child from the house of the respondents at 3p.m. on all Thursdays and the child shall be returned there on all Mondays before 8.30 a.m. If the petitioner wants to return the child on the Sunday evening, she can do the same before 8 p.m. 4. One crucial question remains to be considered. The petitioner-mother of the child asserts that a cochlea implant surgery at this juncture would help the child to get back normal hearing. The respondents on the contrary contend that too much risk is involved in the cochlea implant surgery and that the child is likely to lose hearing altogether, if the surgery is not successful. The petitioner undertakes to take the child to United States and get the surgery performed completely at her expenses. The only question to be decided is whether such a WPC.32842/2009 -4- surgery is necessary and whether risk involved, if any, is worth- taking. It will also have to be decided whether such surgery has to be undertaken at this juncture without any delay. Both sides assert that they have documents and evidence to be adduced in support of their respective contentions on the above aspect. The impugned order, Ext.P11, i.e. order dated 21-10-2009 in I.A.No.3936/2009 passed by the Family Court shows that relevant materials were not placed and marked before the Family Court to come to an authentic conclusion on this controversy. 5. We are in these circumstances satisfied that Ext.P11 order can be set aside and the Family Court can be directed to dispose of I.A.No.3936/2009 afresh in accordance with law after giving both sides opportunity to adduce all such evidence that they want to adduce. The parties shall get ready with such evidence immediately and the Family Court shall dispose of such case as expeditiously as possible. 6. Hand over copies of this judgment to the learned counsel for both sides. The parties shall appear before the Family Court WPC.32842/2009 -5- on Monday, 7th December 2009. The Family Court shall grant parties opportunity to adduce all such evidence as is necessary and shall take a decision on the question in controversy and issue appropriate directions. Such directions shall be issued as expeditiously as possible, at any rate within a period of 15 days from 7-12-2009. Compliance shall be reported to this Court by the Family Court. 7. This writ petition is allowed accordingly. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. WPC.32842/2009 -6-