IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 WP(C).No. 33348 of 2007(S) -------------------------- G.OP.1285/2007 of FAMILY COURT,THRISSUR .................... PETITIONER: ------------ MILKA JOSE, AGED 27, D/O.JOSE KOLANGADAN (POOTHERI) HOUSE, PALLIKKULAM DESOM, THRISSUR VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.P.A.AUGUSTINE(AREEKATTEL) RESPONDENT: ------------- C.O.FRANCIS, AGED 38, S/O.LATE OUSEPH, CHITTILAPPALLY KUNNATHU HOUSE, P.O.PARAVUR, THRISSUR DISTRICT. BY ADVS. SRI.RAJIT FOR R1 SRI.RANJIT BABU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3.9.2008 ALONG WITH RP NO. 556 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: Ext.P1: A true copy of the petition G.O.P. No.1285/2007 dated 19/9/2007 on the file of the Family Court, Kollam. Ext.P2: A true copy of the IA No.4488/2007 in G.O.P. No. 1285/2007 dated 5/11/20097 on the file of the Family Court, Thrissur. RESPONDENT'S EXHIBITS: NIL KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- W.P.(C)NO. 33348 OF 2007 & R.P. NO. 556 OF 2008 ---------------------------------------------------------------- Dated this the 3rd day of September, 2008 JUDGMENT Kurian Joseph, J. O.P. No.1285 of 2007 filed by the petitioner seeking custody of her children is pending before the Family Court, Thrissur. The petitioner has two children in the respondent. The elder child is around seven years and the younger one is now aged two years. Learned counsel appearing for the respondent submits that the elder child was with the father and the mother got custody of the child only in November, 2007 and that though it was only on a temporary basis, the child was never returned to the father. 2. During the pendency of this Writ Petition, we directed the parties to appear before us. We had several rounds of mediation, conciliation and talks with the assistance of various counsel practicing before this Court. Both of us tried our best to purchase peace between the parties. Unfortunately, the ego of the parents apparently does not help the Court to arrive at any solution. Two unfortunate children are torn between their W.P.(C)NO.33348/2007 & R.P. NO.556/2008 2 parents. Both the parents think that they love the children and out of love they fight. But the fact is otherwise. It is their imprudent selfishness which has lead to this litigation. They are not bothered about the welfare of the children, they are bothered only about their litigation. Apparently, they want to win the case even if they lose the children. 3. In the above factual situation, we do not think that this Court should any more keep this Writ Petition pending. Even when an interim order was passed regarding custody of the children during weekends, the petitioner has come up with I.A. Nos. 10175 of 2008 and 11272 of 2008 with unfortunate, painful and unfounded allegations. Instead of teaching and encouraging the children to love both parents despite the fight between husband and wife, what the children are now being taught is to hate the parents. The grand parents are also parties to such unfortunate, disturbing and painful situation. Having regard to the entire facts and circumstances of the case, we dispose of the Writ Petition and the Review Petition with the following directions: i. There will be a direction to the Family Court, Thrissur to dispose of O.P. No.1285 of 2007 in accordance with law in the normal course, needless to say, untrammelled by any of the W.P.(C)NO.33348/2007 & R.P. NO.556/2008 3 observations contained in this judgment since that petition will have to be considered taking note of the circumstances at the time when the case is taken up for trial. ii. Until O.P. No.1285 of 2007 is disposed of by the Family Court, the elder child Rose shall be entrusted with the respondent/father at 8 a.m. on all Sundays. The respondent Sri. Francis will collect the child from the house of the petitioner. In case there is any resistance or difficulty, it will be open to him to report the matter to Thrissur Town East Police Station and the Station House Officer shall render necessary police assistance and protection to Sri. Francis to get custody of the elder child. Sri. Francis shall return the child to the residence of the petitioner before 8 p.m. iii.The respondent/father is also permitted to interact with the younger child Ruth for about one hour at the residence of the petitioner when he goes there to pick up the elder child for which also, if necessary, the Station House Officer will render assistance. iv.There will also be a direction to the Headmistress, St. Johns L.P. School, Parappur to issue the Transfer Certificate of Rose as and when requested by her mother. v. It is also made clear that in case Sri. Francis requests for the custody of the child at day time during school holidays, the same shall be granted in the manner indicated above. It is further made clear that when the father collects the child from the house of the petitioner, he shall be with the child and he shall not entrust the child with others. W.P.(C)NO.33348/2007 & R.P. NO.556/2008 4 In that view of the matter nothing survives in the Writ Petition and the Review Petition. The Writ Petition and the Review Petition are disposed of as above. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ W.P.(C)NO.33348/2007 & R.P. NO.556/2008 5 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. W.P.(C) NO.33348/2007 & R.P.NO.556/2008 JUDGMENT 3rd September, 2008 W.P.(C)NO.33348/2007 & R.P. NO.556/2008 6