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 24TH JULY 2009 / 2ND SRAVANA 1931 Mat.Appeal.No. 506 of 2009(B) ----------------------------- OP(G&W.)995/2008 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): APPELLANTS ------------------------- 1. ANJU SARA VARKEY PERUNTHEKARY HOUSE, ERAYILKADAVU PO, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM NOW RESIDING AT ENGLAND REPERSENTED BY HER POWER OF ATTORNEY AND FATHER SRI.VARKEY MATHEW. 2. VARKEY MATHEW, RESIDING AT PERUNTHEKARY HOUSE, ERAYILKADAVU PO, MUTTAMBALAM VILLAGE KOTTAYAM TALUK, KOTTAYAM. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT: --------------- LALITH RAJU PLATHOTTAM PLATHOTTAM HOUSE, PAIVALLY BHAGOM, OMALLOOR VILLAGE, KOZHENCHERRY ,PATHANAMTHITTA. ADV. SRI.VARGHESE C.KURIAKOSE(CAVEATOR) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON 24-7-2009 PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================= MAT APPEAL NO. 506 OF 2009 ============================ DATED THIS THE 24th DAY OF JULY 2009 JUDGMENT Hari Rani,J. The appellants are the respondents in O.P.No.995/08 on the file of the Family Court, Kottayam. That petition was filed by the respondent herein/father under sections 10 and 25 of the Guardian and Wards Act claiming custody of the minor male child aged 2 years born in the wedlock with the 1st appellant/wife. The learned Judge of the Family Court as per judgment dated 12.6.2009 granted custody of the child to the father/respondent subject to certain conditions. That order is challenged in this appeal. 2. When this appeal was taken up for hearing, we expressed our opinion that this is not a matter where the parties must fight as in any other litigation and it must be Mat.appeal No.506/2009 -2- possible for the parties to arrive at an arrangement so that the child, though the company of the mother is not available, will have the company of at least the father subject to appropriate terms. Considering the anxiety of the maternal grand parents who are looking after the child at present and by noting their submission that the mother of the infant child is likely to come back to India for spells and during such period, arrangements must be stipulated so that the child is not deprived of maternal support and care also, we wanted the parties to settle their disputes harmoniously. The child was produced by the maternal grand parents before court on 6-7-2009. They were referred to the Mediator on 7-7-2009. Accordingly, the Mediator conducted mediation on 7-7- 2009. It was reported by the Mediator that after a detailed joint discussion with the parties on several hours, the matter was not settled. Subsequently on 8-7-2009, the learned counsel for the appellants filed before court, terms of compromise as suggested by the appellants which also was not accepted by the respondent. Hence, Mat.appeal No.506/2009 -3- the matter was taken up for detailed hearing. 3. Heard the learned counsel for the appellants and the learned counsel for the respondent. 4. It is submitted by the learned counsel appearing for the appellants that the first appellant/mother is entitled to have custody of her child aged two years only. As per the impugned order that right has been taken away for the sole reason that she has violated the terms in Exhibit A4 compromise entered into between the first appellant and the respondent regarding the custody of their child. 5. The claim for custody of the child made by the appellants is resisted by the respondent. The learned counsel submitted that the first appellant has remarried on 29-1-2009 and left to London leaving the child with the maternal grandparents who are very busy persons. The child is deprived of the love and affection of his parents. The child needs proper care, love and affection of his father, who is his natural guardian, for the character formation and normal psycho- social development, it is submitted. Mat.appeal No.506/2009 -4- 6. The first appellant is the mother of the child Aditya Lalit Plathottam. The second appellant is the maternal grand father. The respondent is the father of the child. The marriage between the first appellant and the respondent was solemnised on 24-1-2005. The child was born in the wedlock on 28-2-2007. Their marital relationship got estranged. O.P.No.340/2008 was filed by the wife against the husband for dissolution of marriage before the Family Court. O.P.No.492/2008 was also filed under Section 7 of the Family Courts Act by the wife against her husband and father in law for return of money and gold ornaments. Both cases were compromised on conciliation and a compromise petition I.A.No.1702/2008 was filed under Order XXIII Rule 1 of the Code of Civil Procedure by the parties therein. That compromise was recorded in O.P.No.492/2008 and a decree was passed on 18-6-2008 in terms of compromise. As per that decree, the entire monitory claim made by the wife in O.P.No.492/2008 was settled. So also the petition filed by the wife, O.P.No.340/08 for dissolution of Mat.appeal No.506/2009 -5- marriage was withdrawn and the parties agreed to file a joint petition under section 10A of the Divorce Act for a decree of divorce. Terms and conditions regarding the custody of the male child were also provided in the compromise. Thereafter, the petition filed under Section 10A of the Indian Divorce Act by the first appellant and the respondent was allowed by the Family Court as per judgment dated 26-6-2008 in O.P.No.620/2008 after waiving the statutory period of six months. Thus, the marriage was dissolved with effect from 26-6-2008. Thus all the disputes between the parties were settled amicably. 7. Subsequently, the respondent/father of the child filed petition under Sections 10 and 25 of the Guardians and Wards Act, 1890 read with Section 7 of the Family Courts Act and Rule 64 of the Family Courts(Kerala)Rules, 1989 against the mother and maternal grand father of the child claiming custody of the minor child as the natural legal guardian. The respondent was examined as PW1 through commission and Exts.A1 to A22 were marked. Mat.appeal No.506/2009 -6- RWs.1 to 3 were examined on the side of the appellants herein and Exts.B1 to B3, Exts.X1 and X2 were marked. The compromise petition and the decree in O.P.No.492/2008 were marked as Ext.A4. Considering the entire evidence adduced by the parties both oral and documentary, custody of the child was given by the court below to the respondent until change of circumstances occurs. It was also found that the mother cannot be completely avoided. With that in mind custody of the child was given to the first appellant/mother for two days in every month and on the Christmas and Easter days if she is in the native place. Visitation right was given to the second appellant and his wife once in a month. This finding has been challenged in this appeal. 8. PW1 has deposed that the first appellant has remarried and has lost her right to have custody of the child as per the terms of the compromise. Further, the first appellant obtained a job at London and she left for London leaving the child with her parents. This has been Mat.appeal No.506/2009 -7- admitted. According to PW1, if the child is taken to London, his visitorial right will be lost and for that reason also he is entitled to get the custody of the child. Appellants 1 and 2 were examined before the Family Court as RW3 and RW1 respectively. Ext.B1 was marked as the letter dated 3-2-2009 wherein it is stated that the first appellant is employed as a permanent and full time social worker in London. It is admitted that the first appellant remarried on 29-1-2009 and at present she is at London. At present,the child aged two years and four months is in the custody of the second appellant/maternal grand father and maternal grand mother. This is against the terms of the compromise entered into between the parties which is binding on them. It is true that there is no prohibition to the first appellant as per the compromise decree, Ext.A4, either to remarry or to leave Kerala. But it has been specifically agreed by the parties and incorporated as clause 7 of the compromise petition which was appended in the compromise decree that “On remarriage of either of the parties, the party who marries Mat.appeal No.506/2009 -8- first will lose the custody of the child and hand over to the other party.” As the first appellant remarried and the respondent is not remarried, the respondent is entitled to get custody of the minor child as agreed, though he is aged two years and four months only. PW1, the respondent has got financial capacity to look after the child and that fact is not disputed. Ext.A9 is the salary certificate of the respondent who is working as executive personnel in Malayala Manorama in Pathanamthitta branch and drawing monthly salary of Rs.23,000/- with other perks. He is residing with his parents at Pathanamthitta. He remains unmarried after the dissolution of the earlier marriage with the first appellant. He is the father of the child. The child is aged only two years and four months. He needs the company and care of the mother and that cannot be taken away. Though she has obtained a permanent job at London and is working there, she has not taken the child along with her to that place, evidently abiding the conditions in the compromise decree, Ext.A4. That does not mean that she Mat.appeal No.506/2009 -9- has abandoned the child and entrusted the child with her parents against the terms and conditions agreed by the parties. At any rate, the first appellant/mother is living separately from the child after leaving the child with the custody of his maternal parents. In such circumstances the respondent/father is entitled to get custody of the child at present reserving the right of the mother to have custody if change of circumstances occur. RW3, the first appellant has admitted that while entering into the compromise and settling the marital disputes between the parties including the custody of the child, she had no intention to go abroad and also that she had understood each and every clauses in the compromise including the condition that the party who marry first will lose the custody of the child. There was no condition to entrust the custody of the child to the maternal grand parents in the said compromise. The second appellant/maternal grand father has already retired on 31-3-2009 and is residing with his wife. They can be given visitation right and to take the child with them for some days till he Mat.appeal No.506/2009 -10- attains majority. Considering the age of the child and other circumstances of this case we find that some modifications in the terms and conditions imposed in the impugned judgment is absolutely necessary for the welfare of the child. Hence, this appeal is allowed in part and the custody of the child is given to the father with the following conditions: a)He shall give proper care and attention and proper education to the child. b)He shall allow the first appellant/mother of the child to have custody of the child when she comes home from London and during her stay at Kerala without affecting his education. In that event the respondent/father shall hand over the child to the first appellant on the evening of every Friday and return the child on the next Sunday evening. c)During holidays like Onam, X-mas and Easter, the respondent shall hand over Mat.appeal No.506/2009 -11- the custody of the child to the mother or to the maternal grand-parents and they will return the child after the above period to the respondent. d)During the period of stay of the child with the respondent and when the mother of the child is away at abroad, the maternal grand parents will have visitorial right over the child. The respondent shall hand over the child to them on alternative Friday evening and they shall return the child on the next Sunday evening so that the mother of the child can interact with him over telephone and internet. e) If the first appellant/the mother comes and seeks custody of the child showing any changed circumstances, her claim can be considered at that time by the Family court. Mat.appeal No.506/2009 -12- f) In case of remarriage of the respondent, the first appellant can approach the Family Court for appropriate orders to modify the terms and conditions or to get custody of the child till he attains majority. g) All pending proceedings between the parties including E.P.No.54/2009 in O.P.No.492/2008 before the Family Court and regarding custody of the child shall stand closed. h) The child should not be taken outside Kerala without the consent of the first appellant. i) The first appellant can contact the child through telephone when he is with the respondent. j) The appellants shall hand over the child to the respondent/father within three days from today and the Mat.appeal No.506/2009 -13- respondent/father shall take the custody of the child. k)In case of illness of the child, it should be informed to his mother or the maternal grand parents. l) Handing over the child should be done by the party who is in custody of the child on every occasion. m) In case of family functions of either party, custody of the child should be handed over to the other party. Sd/- R. BASANT, JUDGE Sd/- M.C. HARI RANI, JUDGE ks. Mat.appeal No.506/2009 -14-