IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 Mat.Appeal.No. 822 of 2008(F) ----------------------------- AGAINST THE ORDER DATED 04/11/2008 IN IA 1758/08 IN OP.884/2008 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): PETITIONER ------------------------- BIJU, S/O. RAJENDRAN NAIR, POURNAMI, PATTATHANAM, KOLLAM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.S.VAIDYANATHAN RESPONDENT(S): RESPONDENT ------------------------- RAGI THAMPI, D/O. VASANTHA, SARAVANA, 817-D, SANKAR NAGAR, KAIMANAM.P.O, THIRUVANANTHAPURAM. ADV. SRI.S.D.ASOKAN SRI.GOPAKUMAR R.THALIYAL FOR R1 THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN IA NO.3104/2008 IN MA 822/2008 DISMISSED. 17.11.2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - Mat. Appeal No.822 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of November, 2008. JUDGMENT Raman, J. This is an appeal against the order in I.A.No.1758/2008 in O.P.No.884/2008 of the Family Court, Thiruvananthapuram. The appellant is the applicant in the said I.A. and also in the original petition. I.A.No.1758/2008 is filed for an injunction. He is the father of the minor child by name Abhishek. The marriage between the appellant and the respondent was dissolved by a decree of divorce on mutual consent. The copy of the judgment is made available to us by the learned counsel appearing for the respondent, from which it is seen that O.P.(HMA) No.833/2007 was a petition for divorce and the decree was passed on mutual consent. While dissolving the marriage by mutual consent, the custody of the child was given to the mother. However, it was directed that the petitioner herein will have the custody of the child on every alternate Thursdays at 5 p.m. who shall hand over the child on the next day before 9 p.m. So also, during half of summer vacation and other holidays, the child is given to the father, the appellant herein. The wife was also entitled to MA 822/2008 -2- collect the interest of Rs.6 lakhs deposited by the father in the name of the child in the Union Bank of India, Kollam Branch. That judgment was rendered on 26.3.2008. As ordered by the Family Court in the above said judgment, the child was handed over to the appellant herein for temporary custody on 2.8.2008, but thereafter the child was not returned. On the other hand, he filed O.P.No.884/2008 before the Family Court, Thiruvananthapuram. The prayer in the said O.P. is for a declaration and to appoint the appellant as a guardian and custodian of the minor child. If this prayer is allowed, virtually it will vary the judgment passed by the Family Court in O.P.No.833/2007. It is in the said main O.P. that an application is filed seeking an injunction against the respondent from taking the child by force. As a matter of fact, custody of the child with the father beyond the stipulated time is in violation of the order in O.P.No.833/2007. He did not seek any modification of the said judgment, if at all there is any change in the circumstances. In this appeal at the instance of a person who has thus taken custody of the child based on a judgment of the court and failing to return the child to the mother as directed, no relief can be granted. The Family Court has rightly held that such an application for injunction cannot be granted. We do not find any illegality in the order passed by the Family Court. The present O.P. itself is an abuse of process of the court. When MA 822/2008 -3- there is already a judgment rendered by a competent court and that too on mutual consent and after taking advantage of the judgment by taking custody of the child, if at all there is any change in the circumstances or a modification is required, the proper course open is to seek review or modification of the same proceedings by appropriate petition supported by an affidavit. This right, however, is reserved in favour of the appellant. Without prejudice to the above right, the appeal is dismissed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/