IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 14541 of 2008(S) -------------------------- AGAINST THE ORDER IN IA.NO .842/2008 IN OP.198/2004 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): --------------- K.SIVASANKARAN NAIR, XIII/411, SURABHI, VETTANCHERY PARAMBU, ARUKIZHAYA, MANJERI P.O., MALAPPURAM DISTRICT. BY ADV. SR.N.NAGARESH RESPONDENT(S): --------------- M.SREEDHARAN, 56 YEARS, VALIYA VEETTIL HOUSE, KODATHUR, P.O.PERUMPADAPPU, MALAPPURAM DISTRICT. ADV. SRI.C.V.MANUVILSAN SRI.P.K.KHALEEMUDHEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14541 of 2008(S) APPENDIX PETITIONER'S EXHIBITS - P1 - TRUE COPY OF ORDER IN OP(G&W) 198/2004 DT. 30.9.04 OF THE FAMILY COURT, MANJERI. P2 - TRUE COPY OF THE JUDGMENT IN MFA 167/04 DT. 22.2.05 OF THIS COURT. P3 - TRUE COPY OF ORDER N IA 480/05 IN OP(G&W) 198/2004 DT. 27.4.05 OF THE FAMILY COURT, MANJERI. P4 - TRUE COPY OF THE JUDGMENT IN MFA 80/05 DT. 14.6.05 OF THIS COURT. P5 - TRUE COPY OF IA 842/08 IN OP 198/04 FILED BY THE RESPONDENT DT. 24.3.08 IN FAMILY COURT, MALAPPURAM. P6 - TRUE COPY OF THE ORDER IN IA 842/08 IN OP 198/04 DT. 2.5.08 OF THE FAMILY COURT, MALAPPURAM. P7 - TRUE COPY OF THE PROGRESS REPORT ISSUED BY THE HEADMASTER, GLPS, ANIKIZHAYA. P8 - TRUE COPY OF THE DETAILS OF OUTGOING CALLS FROM THE PETITIONER'S RESIDENCE TELEPHONE, FOR THE ,MONTHS APRIL AND MAY, 2008. P9 - TRUE COPY OF THE MEDICAL CERTIFICATE DT,. 27.8.08 ISSUED BY THE ASST. PROFESSOR OF PSYCHIATRY, MEDICAL COLLEGE, CALICUT. P10 - TRUE EXTRACT OF MEDICAL HISTORY. P.R. RAMAN & P.S. GOPINATHAN, JJ. ----------------------------------------- W.P.(C) No.14541 of 2008 ----------------------------------------- Dated:MARCH 2, 2009 JUDGMENT Raman, J. Petitioner is the father of the child Sreelakshmi born on 30.9.1999, after nine years of the marriage, through the petitioner's first wife. Soon after giving birth to the child, the mother died. Thereafter the child was with her grandmother and maternal uncle for over three years. When the child was not returned even after three years, the petitioner approached the Family Court for the custody of the child evidently because by that time he contracted a second marriage and there is no child in that wedlock. The Family Court, after taking evidence and after consideration of all the aspects of the matter, by Ext.P1 judgment allowed OP (G&W) No.198/2004 in favour of the petitioner and the only respondent therein viz. the grandmother Kallianikutty Amma was directed to handover custody of the child to the petitioner. The judgment was rendered on 30.9.2004. Aggrieved thereby, Kallianikutty Amma, the grandmother of the child, preferred Ext.P2 appeal which was disposed of on 22.2.2005. In paragraph 8 of the judgment, this Court observed that both the appellant therein viz. Kallianikutty Amma, who is the WP(C) No.14541 of 2008 2 maternal grandmother, and her son (RW.1) together with his wife were looking after the child ever after the death of its mother on 13.10.1999. Hence this Court opined that they have to be provided with visitorial right as well as right to temporary custody of the minor child. In the circumstances, while affirming the order under appeal, this Court directed the appellant- grandmother as also her son (RW.1) and daughter-in-law to have right to visit the child both at the school where the child would be admitted and at the house of the respondent. They were also allowed to have temporary custody of the child on all second and fourth Saturdays and till 3 p.m. on the succeeding Sundays. Directions were also given as to the manner in which the child has to be handed over. Thus, though Ext.P2 appeal was preferred by the grandmother, this Court, while exercising the parent-patriare jurisdiction, considered the fact that the child was looked after by the uncle and his wife after the death of the grandmother and thought it fit to extend such visitorial rights to the uncle and his wife also. That became final. Thereafter a change was brought out in the circumstances viz. the father of the child was transferred to Gudallur in connection with his employment and as a result the child has to move only with the father. Thus the residence of WP(C) No.14541 of 2008 3 the child had to be temporarily shifted as the child was permanently in the custody of the father. Apprehending that the child may be taken away from the jurisdiction of the Family Court and also raising other allegations, the grandmother again approached the Family Court by filing an application as IA 480/2005 inter alia contending that the child shall not be taken to Gudallur. But the Family Court found that the relief sought for in the petition cannot be granted and by Ext.P3 order, the Court observed that the evidence reveals that the uncle's salary is only Rs.4000/- per month (he was the power of attorney holder in that proceedings) and in the interest of the petitioner, for proper education and upbringing of the child could not be thwarted by giving custody to the uncle. However, the grandmother and others can go and see the child at Gudallur. The power-of- attorney-holder, who is the uncle, owns a vehicle as revealed from the evidence and therefore it is observed that it will be convenient to visit the child at Gudallur. Regarding the period of temporary custody during vacation, it was held that the petitioner could take the child on the next day after closure of the school and retain the child with the petitioner for the period specified in Ext.P2 judgment. This judgment (Ext.P3) by the Family WP(C) No.14541 of 2008 4 Court was carried in appeal before this Court in MFA 80/2005 at the instance of the grandmother. 2. Before we proceed to consider Ext.P4 judgment rendered by this Court, we may at once point out that even in Ext.P3, the visitorial right was extended not only to the grandmother, but also to the power-of- attorney holder, the uncle, and the petitioner had no complaint against that order and he did not seek to prefer an appeal before this Court. On the other hand, an appeal was preferred by the grandmother because her prayer not to allow the petitioner to take the child to Gudallur was declined by the Family Court. Now, turning to Ext.P4 judgment rendered by this Court, it can be seen that some modification has been made in the order passed by the Family Court and it was directed that during Onam holidays the father will visit the native place and give the custody of the child for a week after the Thiruvonam day and the father shall adjust the holidays or leaves, as the case may be, to enable compliance of this direction. During Christmas Holidays the custody of the child has to be given to the appellant for four days and during the summer vacation, except for the first two weeks, the entire custody should be given to the appellant Kallianikutty Amma and the custody of the child should be given back to the WP(C) No.14541 of 2008 5 father two days before the re-opening of the school. Thus, the modification was only regarding the period during which the custody should be given to the grandmother. Even though the order Ext.P4 was passed at the instance of the grandmother, we cannot read the judgment confining the visitorial rights to the grandmother alone since by Ext.P3 order itself, the visitorial right was extended to the uncle as well and in the absence of any appeal therefrom by the petitioner-father, the visitorial right extended cannot now be contended to be something which has been taken away by Ext.P4. 3. Subsequently the uncle of the child, after the death of the grandmother, preferred the present application seeking implementation of the High Court's order in MFA No.167/2004 (P2) and in MFA 80/2005 (Ext.P4). This was resisted by the petitioner inter alia contending that the uncle has no locus standi for seeking implementation of the High Court's order. The Family Court, after an elaborate consideration of the matter, did not find merit in this contention and found that the petition by the uncle is maintainable. But it also took notice of the fact that after the death of the grandmother, the arrangement made by this Court in Ext.P4 was not implemented in favour of the uncle, the WP(C) No.14541 of 2008 6 petitioner therein. It even held that the respondent has to make good the deficit by allowing equal number of days during the current summer vacation itself. Aggrieved by this, the petitioner father has preferred this writ petition. 4. The first point urged by the learned counsel for the petitioner is that the uncle has no locus standi and cannot be given any independent visitorial right. Even during the course of discussion we have highlighted certain aspects of the matter and held that though the appeal against Ext.P1 was preferred by the grandmother, by Ext.P2 judgment, this Court made it clear that the uncle and his wife are entitled to visitorial right. However, since they were living along with the grandmother Kallianikutty Amma, a separate visitorial right need not be given over and above the period during which the arrangement was made since all of them were residing together. There was no appeal therefrom and that became final. Subsequently, at the instance of the grandmother, another application was made. The petitioner wants to take away the child to Gudallur on his transfer to that place Whereas Ext.P3 order makes it clear that visitorial right was extended to the uncle who, it was even said, has a two wheeler and therefore he can travel to Gudallur and see the child. Therefore WP(C) No.14541 of 2008 7 it is not open for the petitioner now to contend that the uncle has no visitorial right. On the other hand, the right of the uncle to have visitorial right is recognised both in Exts.P2 and P4 judgments and later by Ext.P3 order with which we are in complete agreement also and therefore this objection is overruled. 5. The next point is regarding the direction given by the Family Court to supply the deficit by allowing more number of days. That order was passed on 2.5.2008 and the summer vacation is over. We do not think that the visitorial right denied to one of the parties merely because of some reason or the other, can be made good by giving equal number of days in another vacation; that will practically be giving the custody of the child for a longer period which may affect the growth and other conditions and behavior pattern of the child. This is a case where the child was undergoing some treatment for some minor mental ailment. Though the records produced would show that at present she does not require any medication, we cannot forget this fact. Further, the child is extremely happy with her father and the step- mother. Therefore the permanent custody of the child with the father will continue as ordered earlier. However, the visitorial right as well as temporary custody of the child to be given during vacation as WP(C) No.14541 of 2008 8 ordered by this Court earlier will continue. However, the direction in Ext.P6 to make good the deficit giving more number of days of custody during the vacation has become infructuous at this point of time and we make it clear that no such benefit could be given. Accordingly that portion of the direction is set aside. 6. The direction regarding the custody as contained in Ext.P4 for the time being will continue. If any modification is required, it will be open to the parties to approach the Family Court and convince that Court that such changes are required. The writ petition is dismissed subject to what is stated above. P.R. RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. mt/-