IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 MFA.No. 25 of 2009() -------------------- AGAINST THE ORDER DATED 05/12/2008 IN G & W IN OP.1202/2007 of FAMILY COURT,TRIVANDRUM .................... APPELLANT(S): -------------- 1. AGUSTUS CEASER, AGED 35, S/O.JOSEPH RODRIGS, ANNAMMA MANSION, SAKTHIKULANGARA PO., KOLLAM. 2. JOSEPH RODRIGS, S/O.PETER, ANNAMMA, MANSION, SAKTHIKULANGARA PO., KOLLAM. 3. BARBARA JOSEPH, W/O.JOSEPH RODRINGS, ANNAMMA MANSION, SAKTHIKULANGARA PO., KOLLAM. BY ADV. SRI.T.M.RAMAN KARTHA SRI.S.SUNIL NARAYANAN RESPONDENT(S): --------------- 1. RANI, AGED 28, D/O.YESUDAS, TC.13/455, TARA 97, MIRANDA JN., KUNNUKUZHI, VANCHIYOOR, THIRUVANANTHAPURAM. 2. YESUDAS, TC.13/455, TARA 97, MIRANDA JN., KUNNUKUZHI, VANCHIYOOR, THIRUVANANTHAPURAM. 3. LILLY YASUDAS, W/O.YESUDAS, TC.13/455, TARA 97, MIRANDA JN., KUNNUKUZHI, VANCHIYOOR, THIRUVANANTHAPURAM. ADV. SMT.SADHANA KUMARI ESWARI FOR R1-3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * M.F.A.No.25 of 2009 ---------------------------------------- Dated this the 26th day of March 2009 J U D G M E N T BASANT,J The petitioners before the Family Court are the appellants before us. They are the husband and parents-in-law of the 1st respondent. Respondents 2 and 3 are the parents of the 1st respondent. The 1st petitioner and the 1st respondent were married and they have one child aged 4 ½ years now in that wedlock. The matrimonial tie stands dissolved now. The dispute is about the guardianship/custody of the child. The child is in the custody of the 1st respondent. The appellants pray that the 1st appellant may be declared to be the local guardian and custody of the child may be given to him. The 1st respondent is admittedly employed in Australia now. The child was left in the custody of respondents 2 and 3 when she proceeded to Australia. She has now completed her education and has taken up employment abroad. She wants to take her child as also respondents 2 and 3 to her place of employment in Australia. She prayed that the child may be allowed to continue in her custody and she may be permitted to take the child to her place M.A.C.A.No.25/09 2 of employment abroad. Before the Family Court there was the evidence of PWs 1 to 5 and RW1. Exts.A1 to A5 and Exts.B1 to B3 were marked. 2. The learned Judge of the Family Court, after taking into consideration all the relevant inputs, came to the conclusion that the child deserves to be permitted to continue in the custody of its mother, the 1st respondent herein in the interests of the child. The welfare of the child demanded such course, it was held. The Family Court, further directed that the 1st respondent shall be at liberty to take the child to her place of employment abroad subject to visitorial rights of the petitioners when the child is brought to India. 3. The appellants/petitioners claim to be aggrieved by the impugned order. They contend that the Family Court went wrong in permitting the 1st respondent to keep custody of the child and take the child to Australia. The 1st appellant was employed in one of the gulf States. He had offered to come back to India from his place of employment so that he can attend on the child. At the Bar, it is submitted that the 1st appellant has already left such employment and has come back to India. The Family Court had not considered the question in the proper perspective, it is urged. 4. We have been taken through all the details of the dispute between the parties. We take note of the tender age of the child M.A.C.A.No.25/09 3 (less than 5 years). We take note of the estranged relationship between the parents. We take note of the reality that the 1st appellant is employed abroad and for whatever reasons he may have now returned to India, he definitely has to pursue his employment. We have no doubt in our mind that the conclusion of the Family Court that such an infant child has to be left in the custody of its mother is eminently reasonable and does not warrant any interference. That direction, according to us, is fair, just and reasonable and caters to the ends of justice and the interests of the welfare of the minor child. 5. The learned counsel for the appellants then contends that though an illusory visitorial right has been mentioned in paragraph 15 of the order, that right has not been given in tangible and definite form. At least, there may be an appropriate direction which shall ensure that the appellants get visitorial rights in a real and reasonable manner, contends the counsel. 6. The learned counsel for the appellants presses that it may be directed that the child must be brought to India every year and the appellants must be given visitorial rights during such period. The learned counsel for the respondents, on the contrary, submits that it will be very difficult and expensive to bring the child to India every year. The child will have to be admitted in a school at M.A.C.A.No.25/09 4 Australia and they have four vacations in April, July, September and December. During April, July and September, the break is only for 17 days. Whereas during December, the break is for a period of one and a half months. Travel will be most expensive during this period - December, in these circumstances, it is prayed that direction may be issued to bring the child to India during April, July or September and that too once in two years only. The learned counsel for the appellants submits that if expenses are the problem, the appellants are willing to meet the expenses for the travel of the child every year during December. They submit that 17 days break during April, July or September will be too short for the child to undertake a trip to India and return. In these circumstances, there may be a direction to bring the child to India during the December vacation every year and all such expenses for the transportation of the child to and fro shall be met by the appellants, it is submitted. 7. We have considered all the relevant circumstances. We reckon the offer made by the appellants to be most reasonable. We do, in these circumstances, direct that the child shall be brought to India during December every year and the entire expenses for to and fro journey of the child from the place of residence shall be met by the appellants. The child shall be produced before the Family Court every year on the 4th Monday of December. When the child is M.A.C.A.No.25/09 5 so produced, the expenses for the tickets of the child shall be paid by the appellants to the 1st respondent. Prior intimation shall be given to the appellants about the date of production of the child and the amount that is required. The Family Court shall pass appropriate orders regarding the manner of exercise of the visitorial rights each year. 8. The learned counsel for the appellants submits that the 1st appellant is in India now and he wants to exercise visitorial rights in respect of the child now. The respondent shall produce the child before the Family Court on 04/04/2009. Both parties shall appear before the Family Court on that day. Appropriate directions to give effect to the visitorial rights shall be issued by the Family Court. 9. This appeal is, in these circumstances, allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.25/09 6 M.A.C.A.No.25/09 7 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009