IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 Mat.Appeal.No. 107 of 2011() ---------------------------- OPGW.3/2011 of FAMILY COURT, KOTTARAKKARA .................... APPELLANT: PETITIONER ------------------------- CHERUPUSHPAM, AGED 29 YEARS, D/O.MARYKUTTY, PEKKULATHU VEEDU, KALANCHUR P.O., PATHANAMTHITTA, NOW RESIDING AT PALAZHI VEEDU, KIZHAKKEKARA, KOTTARAKKARA. BY ADV. SRI.NOBLE MATHEW RESPONDENTS: RESPONDENTS -------------------------- 1. SHAJI @ RAJAN, AGED 39 YEARS, S/O.LATE JILLARIOUS, SANTHOSH COTTAGE, PADAKKARA, KOLLAM. 2. THE DIRECTOR, S O S CHARITABLE TRUST, CHILDREN VILLAGE, EDATHALA NORTH P.O., ALUVA. ADV. SMT.T.S.MAYA (THIYADIL) FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat. Appeal No. 107 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of February 2011 JUDGMENT Joseph J., The appellant challenges the order passed by the Family Court, Kottarakkara. 2. Briefly put the case of the appellant is as follows. The appellant and the first respondent got married and two female children were born in the wedlock and now they are aged 9 and 6 years. Because of the strained relationship, the parties have filed a joint petition for divorce under the Indian Divorce Act before the Family Court, Kollam. O.P. No. (G&W) No. 450 of 2008 was filed by the appellant for seeking custody of the children. In terms of the compromise the appellant took the children for Christmas holidays and they were to be given back to the second respondent. The children were not willing to go back and they told that they will Mat. Appeal No. 107 of 2011 :2: commit suicide if they are sent along with the first respondent or the second respondent. The appellant filed O.P. (G&W) No. 3 of 2011 before the Family Court, Kottarakkara. She filed an application to restrain the first respondent from taking away the children. However, the Court passed impugned order. It reads as follows: “Petitioner present. Respondent is also present with children. Second respondent is also present. The parents of the children have already been divorced. Both of them have been seperated. The children were comfortable at S.O.S. It is submitted that the petitioner is living with another man. Considering the welfare of the children the continued residing of the children at S.O.S., Aluva seems to be the most viable alternative. In the circumstance the petitioner is directed to send back the children to S.O.S from where she had taken them, so as to continue the education of the children there, by 10 a.m. on 19.1.2011. Second respondent will report compliance by the petitioner. Call on 4.2.2011.” Mat. Appeal No. 107 of 2011 :3: 3. We interacted with the children, the appellant and the first respondent. Though served there is no appearance for the second respondent. Learned counsel for the first respondent would submit that the children can be admitted and their education can be continued in the boarding school, namely Stella Marys' Convent, Balika Sadanam, Thirumullavaram, Kollam. The learned counsel for the first respondent would submit that the sister of the first respondent is a nun in the same school. The learned counsel for the first respondent would submit that the School authorities are also agreeable and that they are prepared to admit the two children of the appellant and the first respondent. It is submitted by the learned counsel for the first respondent that the first respondent will pay all the expenses in connection with the education of the children. It is submitted by the learned counsel for the appellant that the appellant is also agreeable for such course. 4. In such circumstances, we set aside the impugned order and direct that the children will attend the school-Stella Marys' Convent, Balika Sadanam, Thirumullavaram, Kollam, as agreed Mat. Appeal No. 107 of 2011 :4: between the parties. The terms of the compromise between the parties in O.P. (G&W) No. 450 of 2008 except for direction that the children will take education in the second respondent school will hold good till the disposal of O.P. (G&W) No. 3 of 2011 pending before the Family Court, Kottarakkara. Visitation rights which the parties had in respect of the children with regard to the second respondent school will apply in respect of the new school to which they are shifted as per this judgment. It will be open to the appellant to move the second respondent for getting back the T.C. and other belongings of the children and any amount due as Scholarship fee. 5. The appellant shall hand over the custody of the children to the first respondent at 11 a.m. on 19.2.2011 in the premises of the Family Court, Kottarakkara so that the first respondent can do the needful in terms of this judgment. We record the submission of the learned counsel for the first respondent that the first respondent will take the children, go to the second respondent school, collect the T.C. and other belongings of the children and also any amount Mat. Appeal No. 107 of 2011 :5: which may become payable as aforesaid and take the children and get them admitted in Stella Marys' Convent, Balika Sadanam, Thirumullavaram, Kollam within two days from the day on which the T.C. is received. 6. The appeal is disposed of as above. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/