IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 Mat.Appeal.No. 458 of 2008 ---------------------------- AGAINST THE ORDER DATED 02/04/2008 IN IA 4355/2007 IN OP.1322/2003 of FAMILY COURT,ERNAKULAM .................... APPELLANT/PETITIONER: --------------- KURIAKOSE, AGED 44 YEARS S/O. YOHANAN, VALIYAKAROTT HOUSE KOOVAPARA P.O. KUTTAPUZHA VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.H.B.SHENOY RESPONDENT/ RESPONDENT: --------------- SUNI, AGED 32 YEARS, DAUGHTER OF P.K. PAULOSE, POKKATHAI HOUSE, THRIKKALLATHOOR P.O. NOW RESIDING AT C/O.PAULOSE, MANJANADATH, AYARAPURAM P.O., KEEZHILLAMPPALLY. ADV. SRI.ALEXANDER JOSEPH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== MAT APPEAL NO. 458 of 2008 ============================ DATED THIS THE 28TH DAY OF JUNE 2010 JUDGMENT Basant,J. Aggrieved by the order passed by the Family Court refusing to modify the terms regarding custody of a minor child of the contestants, the appellant/father of the child, has come to this Court. 2. The basic facts are all admitted. The child is now aged about 12 years (date of birth – 2/8/1998). There was a dispute between the spouses and their marriage now stands dissolved vide a consent order passed by the Family Court, Ernakulam in O.P.No.1321/2003. The dispute regarding custody of the child was also settled and consent order was passed in O.P.No.1322/2003. Detailed terms have been stipulated in the consent order dated 19/12/2005 in O.P.No.1322/2003. It is submitted that the arrangement was working perfectly till recently. MAT APPEAL No. 458/2008 -2- 3. Now the respondent has got re-married. She is pregnant also. In these circumstances, the appellant went before the Family Court for modification of the terms of the consent decree. According to him, as the respondent has got re- married, there was need to modify the conditions. By the impugned order, the court below rejected the prayer of the appellant. The appellant claims to be aggrieved by the impugned order and has come before this Court to challenge the impugned order. 4. Certain facts deserve to be mentioned. As per the consent of both sides, the child was admitted to Queen Mary's English Medium School, Mudikkal. The hostel in that school was closed down and hence the child could not continue the education in that school. The father of the child got the child admitted to a local school - St.Stephen's Bes-Ania Public School, Chelad. The child started residing with the father. This was done without getting the prior permission of the court. The wife had raised objections against the same. 5. Be that as it may, the appellant has now got the child admitted to Viswadeepthi School, Adimali. There is a hostel in that school and the child is admitted to that hostel and is MAT APPEAL No. 458/2008 -3- continuing his studies there. Though there was acrimony between the contestants about the continuance of the child in a school near the house of the appellant where there was no boarding facility, those controversies appear to have passed now. The learned counsel for the respondent-mother submits that the respondent now accepts the admission of the child in the Viswadeepthi School at Adimali and his continuance in the hostel there. She does not want to make any complaint on that aspect now. 6. What remains is only the request of the appellant that the mother having remarried, the consent order passed in O.P.No.1322/2003 deserves modification. We have gone through the terms of the agreement. Until the child attains majority, the child is to be admitted in a Boarding school as per the terms and the expenses are to be met by the appellant/father. Until the child attains the age of 12 years, the mother was permitted to take the child with her from the Boarding thrice a month and the father was permitted to take the child once a month. Stipulations were also made about the manner in which the child is to spend his vacation. After the age of 12 years, the father and the mother were to have equal visitorial rights and rights for MAT APPEAL No. 458/2008 -4- custody of the child during vacations and weekends. 7. The child is to attain the age of 12 years on 2/8/2010. Re-marriage of the mother, we felt cannot by itself be a ground to deny the mother the right to have custody of the child during weekends and during vacation. We wanted to ascertain whether the child has any difficulties to cope with the present arrangement after the re-marriage of the mother. We interacted with the child in the Chamber during lunch recess and the child assures us that he is happy and comfortable both with the father(appellant) and with the mother and his step-father even after the re-marriage of the mother. The husband of the mother has another elder child and both the children are together during weekends when the mother takes the child with her to the house of her present husband. On some weekends, he resides at his grand-father's house also, reports the child. The child appears to be absolutely happy and comfortable in the company of the mother and step-father, notwithstanding her re-marriage. We are not in these circumstances satisfied that the re-marriage of the mother can by itself operate as a valid and justifiable ground to deny to the mother any benefit which is conceded in her favour as per the consent order. MAT APPEAL No. 458/2008 -5- 8. After the child attains the age of 12 years on 2/8/2010 as per the stipulations in the consent order, both parents are to have equal rights regarding custody of the child – both during weekends and during vacations . 9. It is submitted at the Bar and we have got it confirmed from the child that from the Boarding where the child is now lodged, he can aspire to go home only for one weekend, i.e. second Saturday during every month. After 2/8/2010, the rights of the father and mother would be equal in all respects. But until 2/8/2010, we perceive the possibility of a dispute. 10. In these circumstances, we direct that from today onwards the father and the mother shall have equal rights regarding custody of the child during vacation as well as during weekends. On the second Saturday of July 2010, the child shall be with the mother. Thereafter, the custody during Second Saturdays can alternate. So far as vacations are concerned, the next vacation – Onam vacation is to come only after the child attains the age of 12 years, whereupon under the consent decree both parents shall have equal rights. To avoid the possibility of any dispute, we direct that the mother of the child can claim custody of the child during the first half of the vacations. MAT APPEAL No. 458/2008 -6- 11. This appeal, in these circumstances, is allowed to the extent indicated above. The order in O.P.No.1322/2003 shall stand modified to the above limited extent. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.