IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 OP (FC).No. 2298 of 2011(R) ------------------------------------- OP.1017/2011 of FAMILY COURT,ERNAKULAM ................................................ PETITIONERS -------------------- 1. REUBEN JACOB, S/O.V.M.JACOB, VALAYIL, D-10/46, KSHB COMPLEX, IRUMPANAM P.O., KOCHI-682 309 RESIDING AT CHACKOLAS WATERSCAPES, THEVARA, ERNAKULAM-682 013. 2. MARIAMMA JACOB, W/O.V.M. JACOB, VALAYIL, D-10/46, KSHB COMPLEX, IRUMPANAM P.O., KOCHI-682 309. 3. V.M.JACOB, S/O.VALAYIL MATHEW, VALAYIL, D-10/46, KSHB COMPLEX, IRUMPANAM P.O., KOCHI-682 309. BY ADVS. SMT.K.KUSUMAM SMT.SHAMNA RESPONDENT --------------------- GEENA GEORGE,D/O.LATE M.E.GEORGE, 10C,MIR EMERALD PARK,AMBADIMOOLA,KAKKANAD, ERNAKULAM-682013. ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.T.M.BINITHA SMT.AFSANA ASHRAF SMT.CHINCY GOPAKUMAR (MEDIATOR) THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 3/12/2011, ALONG WITH OPFC NO. 2471 OF 2011 AND OPFC NO. 2478 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JM OP (FC).No. 2298 of 2011 APPENDIX PETITIONERS' EXHIBITS: P1: COPY OF OP .1017/2011 P2: COPY OF INTERIM PETITION, IN I.A. 2276/2011, IN EXHIBIT P1 CASE P3: COPY OF COUNTER IN EXHIBIT P2 IA. P4: COPY OF IMPUGNED INTERIM CUSTODY ORDER (I.A. 2276/2011) P5: COPY OF GEENA'S BANK ACCOUNT SHOWING THAT ON 14.4.2010, SHE PAID HOTEL BILLS AT BANGALORE P6: COPY OF CREDIT CARD BILLS OF THE REUBEN JACOB SHOWING THAT HE ALSO STAYED IN THE VERY SAME HOTEL ON 13.4.2010 P7: COPY OF RESPONDENT'S E-MAIL MESSAGE KEPT IN THE DRAFT ACCOUNT P8: COPY OF RESPONDENT'S TELEPHONE BILL FROM HER NO. 9846295150 P9: COPY OF MAIL ID DT. 2.6.2010 FROM RESPONDENT TO 1ST PETITIONER P10. PHOTOGRAPHS SHOWING THE RESPONDENT WEARING REVEALING DRESSES P11. PHOTOGRAPHS SHOWING THE RESPONDENT DRINKING LIQUOR P12: PHOTOGRAPHS SHOWING HOW THE CHILDREN ARE HAPPY WITH THE PETITIONERS P13. PHOTOGRAPHS SHOWS THAT HOW THE CHILDREN WERE AFFECTED WITH SKIN DISEASES P14: CHILDREN'S LETTERS P15: PHOTOGRAPHS OF THE CHILDREN WITH PETITIONERS, DT. 3.9.2011 P16: PHOTOGRAPHS OF THE CHILDREN WITH PETITIONERS DT.8.9.2011, 9.9.2011 AND 10.9.2011 SHOWING THAT THE CHILDREN WERE WITH THE PETITIONERS DURING ONAM HOLIDAYS P17: PHOTOGRAPHS OF THE 1ST PETITIONER AND CHILDREN SHOWING THAT THEY WERE WITH THE PETITIONERS ON 4.10.2011, 16.10.2011, 17.10.2011, 18.10.2011, 19.10.2011, 20.10.2011, 29.10.2011 ETC. P18: PHOTOGRAPHS DT. 3.7.2011 OF THE YOUNGEST CHILD, SHOWING ULCERS ON HER BODY. P19: PHOTOGRAPHS DT. 3.10.2011 OF THE YOUNGEST CHILD MICHELLE, SHOWING SWELLINGS, AND BRUISES ON HER FOREHEAD AND BODY RESPONDENTS EXHIBITS: NIL COURT EXHIBITS: EXHIBIT XI- TWO SHEETS OF PAPER WITH WRITINGS BY MATTHIAS JACOB AND MARCUS JACOB AND ON BEHALF OF THEIR SISTER \\TRUE COPY\\ PA TO JUDGE JM Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. = = = = = = = = = = = = = = = = = = = = = = = = OP(FC).Nos.2298, 2471 & 2478 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of December, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.Read order dated 5th August, 2011. As recorded therein, these matters relate to a couple with three children. The youngest was two years old when the wife invoked Section 125 Crl.P.C. That has led to OP(FC).No.2471 of 2011 against an order of interim maintenance. The wife has sued for divorce. She has also sought for partition. The husband and his parents filed application for custody of the three children. The Family Court has issued an order regarding interim custody and visitation rights pending adjudication of the final matter. That has led to OP(FC).No.2298 of 2011 by the husband and his parents and OP(FC). No.2478 of 2011 by the wife. OPFC.2298/11 & con.cases -: 2 :- 2.Though for the reasons stated in that order dated 5th August, 2011, the Bench referred the matter for mediation, that failed. 3.Having considered the orders impugned in these original petitions, we thought it fit to interact with the children and their paternal grandparents and the maternal grandmother. Their maternal grandfather is no more. We took this course of action because the facts abundantly establish that the children were in good company of the grandparents. 4.We heard the learned counsel for parties on different aspects, including the question whether the parents could have a bargain between them or rather they should stand by the best interest of the children. Our interaction with the children in Chambers gave us the opportunity to enjoy the company of the two elder ones, namely, Matthias Jacob and Marcus Jacob. Having regard to some allegation in the original petition that the OPFC.2298/11 & con.cases -: 3 :- youngest one, a girl, is not being properly attended to, we saw the said child brought to us by the grandparents. 5.When the two boys interacted with us, they gave two sheets of paper with writings by them and on behalf of their sister. That opens up calling “Dear Judge”. We think it is profitable that the same is taken on record as Ext.X1(two sheets). It is hence admitted to record. Photostat copy of that will also stand appended to this judgment. 6.In so far as the aforesaid Ext.X1 is concerned, it could be criticized that the children could have been prompted by the father to write so. There could be some criticism about the mother also. But, if only the parents would read what the children have written, they should even now find ways and means to tackle the situation and end the litigation. Remember, the Bench had pointed out in the second paragraph of the aforesaid order dated 5th August, 2011 that the litigations remain OPFC.2298/11 & con.cases -: 4 :- essentially in infancy. The robust children Matthias Jacob and Marcus Jacob mentioned to us that they would be happy to have the company of both the parents. They should also have the opportunity to carry on with the education. Parents are educated. But, this should not be only in the literal sense. Education and information should pave way for transformation and self improvement for the purpose of cordiality in the family and society. 7.The litigations being at the primitive stage, we do not deem it appropriate to reiterate all the allegations between the parties and the different items of materials on record which disclose various allegations as to conduct which, going by arguments, is not conducive to congenial family circumstances where children have to grow. We would only note one point. The father of the children has some allegation about a stranger to the family, namely, one Sarosh. There are other allegations about the wife. As far as the allegation OPFC.2298/11 & con.cases -: 5 :- surrounding Sarosh is concerned, the wife has stated in paragraph 6 of Ext.P3 in OP(FC).No.2298 of 2011 which is the counter affidavit that she filed to I.A.No.2276 of 2011 in O.P.No.1017 of 2011 that Sarosh is a musician residing in Mumbai with whom she had a casual acquaintance in 1991 and she renewed that acquaintance through Face book in 2010. She would say that she met him only once after 1991 and that was in Hotel Royal Orchid in Bangalore when her husband was also with her. She denies the allegation of having slept with Sarosh. At the same time, the allegations by the wife against the husband are fundamentally on financial issues, including assets. We looked into this at this stage only to point out that the quality of the allegations and counter allegations and the responses to them, generate in us, the strong and clear impression that the best interest and welfare of the children who are the victims of this litigation, would not be well protected by the terms of the impugned orders or if they are in the exclusive custody of either of the parents with OPFC.2298/11 & con.cases -: 6 :- visitation rights for the other. Child cannot be treated as a commodity. Due weight has to be given for the intellectual development of children, apart from their physical well being. 8.The chronology of the commencement of tes litigations was also focused at arguments. The application for maintenance under Section 125 Crl.P.C was filed on 3.3.2011. The divorce application by the wife was filed on 8.3.2011. On 5.5.2011, she filed the suit for partition and for money. The custody application by the husband was filed on the day on which he filed counter affidavit to an application for injunction. We would record that according to the learned counsel for the wife, the belated claim for custody is suspicious and triggered by the claim by the wife for property. This may not, by itself, have any bearing, in our view. This is so because, the considerations in such an adjudication will revolve on the paramount interest of the child and not the competing bargains between the parties. OPFC.2298/11 & con.cases -: 7 :- 9.It is apposite in this context to note that the two sons were born on 4.10.2002 and 14.6.2005 in the United States. The youngest, the daughter, was born in India on 8.3.2009. Litigations commenced in early March, 2011. The allegation is that the husband deserted on 1.9.2010. 10.We have already mentioned that we would not go deeper into the facts. We stick to that because, we still feel that there is room to settle this litigation amicably. Otherwise, the allegations could be left for final consideration by the Family Court, at the first instance. 11.For the present, it needs to be further noticed that the husband and his parents now stay in Flat No.12A and the wife stays with her mother and a domestic help in Flat No.10C of MIR Emerald Apartments; that is, one floor apart, in Ernakulam. The husband and wife are in the Information Technology sector. They appear to be financially OPFC.2298/11 & con.cases -: 8 :- well, in terms of income, going by the materials. The wife goes to work at 8 a.m. and returns by 6.30 p.m., going by the submissions made before us. The husband now operates from his residence, it is submitted. Our interactions with the paternal grandmother and maternal grandmother disclosed the comity that existed between them and their inclination not to ignore our suggestion to continue to maintain the relationship among the elders, though their children would not be in a mood to accede to that. The maternal grandmother of the children unfortunately has the physical situation where she needs a walking stick and finds it difficult otherwise. We spoke to her. That nice woman has all love and affection for the little children. She is well oriented, fairly educated and of good disposition. At the same time, she may not be able to nurse the youngest child or take care of the two elder boys except with the aid and assistance of a nurse or maid to help. In fact, it is said that they have a maid at home. Our interaction with the paternal grandmother and our OPFC.2298/11 & con.cases -: 9 :- assessment about her is that she would be able to take care of the little girl who needs to be cared for at this stage during the whole day. The boys and the little girl were seen to be in good company with her also. She is also educated and well informed. We see the uncontroverted photographs exhibited as Exts.P10 to P13 and P15 to P19. The cordiality that was there in the family is well reflected. We also see that the children would be equally happy at home with the paternal grandparents as well. In fact, we do not find any reason to consider that the company with either of the parents would be preferable to the company of the grandparents. 12.Having regard to the aforesaid and focusing primarily on the best interest of the children, we order these original petitions as follows: a)In the interest of the children for the time being, their father shall continue to reside in Flat No.12A and the mother of the OPFC.2298/11 & con.cases -: 10 :- children shall continue to reside in Flat No.10C of MIR Emerald Apartments. We issue these directions not as any restriction to the parents, but as a move to conveniently work out the further directions being issued hereunder. b)The children will be under the control of the paternal grandparents and in the custody of the father. They will be housed in Flat No.12A along with the paternal grandparents for the time being. c)The mother can pick up the girl child on every evening when she comes after work and keep the child with her until she goes to work next day. The child would then be dropped back to Flat No.12A. For week ends and on holidays when the mother does not have to go for work, the girl child can be kept with her. OPFC.2298/11 & con.cases -: 11 :- d)As regards the boys, they would choose for themselves and go to sleep with their mother or be with her when she is at home. Having noticed their abilities, we would request them that they should take care of their studies as we see that they have abundant potential to contribute to the society in future. We see that they are in a good school and they have excellent abilities and opportunities to grow. The boys could spend their week ends with the mother or even if needed, they may go to sleep with her or be with her mother as they may think it appropriate. e)The mother and the maternal grandmother of the children would be entitled to visit the children at any time in Flat No.12A. f)We see the anxiety of the children. We are sure that the parents will behave and exclude inconvenience for the children OPFC.2298/11 & con.cases -: 12 :- involved in these original petitions. g)The order for custody and visitation as issued by the court below will stand modified as above. h)Though we modify the order regarding the custody and though we are sure that the mother may not need much financial support from the father to cater in terms of this order, we keep the order for maintenance intact. It does not require any modification. i)With all the aforesaid, we reiterate that in the best interest of the children, the litigations between the parents should end at the earliest, be the couple to go hand in hand or otherwise. We say this because, we have seen the pinch in the hearts of the little ones. OPFC.2298/11 & con.cases -: 13 :- j)The parties are directed to mark appearance before the Family Court on 28th December, 2011. That Court will, if necessary, issue such orders as may be required, if the parties seek any further direction on the basis of this judgment. No costs. Thottathil B.Radhakrishnan, Judge. C.T.Ravikumar, Judge. Sha/2112