IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5881 of 2010(R)
1. ANNIE, D/O.VARGHESE,
... Petitioner
Vs
1. V.J.A.RICHARD, S/O.JACOB,
... Respondent
For Petitioner :SRI.M.K.DILEEP KUMAR
For Respondent :SRI.SUBAL J.PAUL
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :02/06/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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W.P.(C) No. 5881 of 2010-R
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Dated this the 2nd day of June, 2010
JUDGMENT
Basant,J.
Parties to this writ petition are divorced spouses. The bone
of contention is the custody of a girl child now aged about 12
years. About the custody of the said minor child, Ext.P1 judgment
dated 19/6/07 in M.F.A.No.19/07 and Mat.A.No.210/07 passed by
this Court holds the field.
2. The child is now in the custody of the mother and the
directions in the said judgment – Ext.P1 is that the father shall
have the custody of the child during all vacations as also the
second Saturdays and the following Sundays.
3. It is admitted that the father, considering the difficulties
of the child and the distance that has to be traversed, is not
invoking his right for the custody during the second Saturdays and
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the following Sundays. During the entire vacations, the child is
in the custody of the father.
4. Immediately prior to the December – Christmas vacation,
2009, the mother filed an application before the Family Court to
modify the conditions in Ext.P1 judgment. The child was about
to attain puberty. The mother apprehended that the custody of
the child if handed over to the father during that Christmas
vacation, the child will not have any female members to attend
on her during the onset of puberty. The Family Court by
Ext.P4 order dated 21/12/09, allowed the said application in part.
Later, by Ext.P5 order dated 26/12/09, the said order was
modified and Ext.P1 judgment stood restored.
5. The petitioner/mother is aggrieved by Exts.P4 and P5
orders. According to the learned counsel for the petitioner, the
prayer made him was not relating to the custody during
December vacation 2009 alone; it was really to modify Ext.P1
judgment . In Exts.P4 and P5 orders this prayer has not been
considered by the Family Court. It is hence prayed that those
orders may be interfered with invoking the jurisdiction under
Art.227 of the Constitution and appropriate directions may be
issued. Ext.P1 directions may be realistically modified, it is
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prayed.
6. The learned counsel for the respondent opposes this
writ petition. Ext.P4 order has not been challenged earlier. In
these circumstances, if the petitioner/mother wants to challenge
Ext.P4 order, she must have preferred a regular Mat. Appeal, it
is contended.
7. We find no merit in this first objection raised. The
petitioner has actually come before this Court with the grievance
that hes application – I.A.No.5125/09 has not been properly
considered. It is non-consideration of I.A.No.5125/09 properly
which is assailed in this writ petition. We find force in that
contention. I.A.No.5125/09 has not been considered properly.
In these circumstances, the objection raised to jurisdiction is
turned down. Even otherwise assuming that there is merit in
that objection, we are satisfied that in the nature of the facts and
circumstances of this case the said technical objection can be
overlooked and the matter can be disposed of on merits.
8. There was a suggestion that the parties can be
persuaded to settle their disputes. It was also prayed that the
wishes of the child may be ascertained. Accordingly, we
interacted with the father, mother, paternal grandmother and
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the child in the Chamber. Though there was agreement on
certain aspects, no comprehensive settlement could be reached.
Parties preferred an order of this Court to any agreed upon
order.
9. It is conceded at all hands that the custody ordered on
the second Saturdays and the following Sundays is not being
availed of by the father. We are, in these circumstances,
satisfied that the said stipulation of custody of the child by the
father during the second Saturdays and the following Sundays
can be set aside.
10. What remains is only the contention that the child must
not be given to the custody of the father as the child has already
attained puberty. We find no merit whatsoever in this objection.
The respondent is the father of the child. He has his mother i.e.,
the grandmother of the child with him. It would be idle to
assume that the father is not entitled to custody of a minor child
for the reason that she has attained puberty. Attainment of
puberty is a most natural and ordinary event in the life of the girl
and that cannot definitely operate as a reason to deny the father
of his right to custody of the child. The said objection cannot
hence be accepted.
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11. However, we take note of the submission of the learned
counsel for the petitioner that in the house of the father there
would be no female members and that this would cause great
difficulty for the child, especially so as the young child will
have to manage herself during her menstrual periods. The
father of the child assures this Court that whenever he takes the
custody of the child, his mother i.e., the grandmother of the child
will be with him. She will be with him throughout the period
when child is in his custody. The paternal grandmother agrees
to this. We accept that undertaking and in these circumstances,
the said objection raised by the petitioner also pales into
insignificance.
12. What remains is only the dispute regarding the custody
of the child during vacation. There is a dispute as to what can
be reckoned as a vacation. We think it better to clarify that all
breaks in the school curriculum where the child is not obliged to
go to school for seven consecutive days shall be reckoned as
vacation. There is a dispute between the father and the mother
as to whether there is Onam vacation for the school or not. The
above clarification, we are satisfied, shall set that controversy to
rest.
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13. Admittedly, there are Pooja, Christmas and summer
vacations of 10, 10 and 50 days respectively. The learned
counsel for the petitioner/mother submits that the mother is
deprived of the opportunity to have any interactions with the
child during vacations. During working weeks, the opportunity
for leisurely interactions between the mother and the child is
limited and in these circumstances, the child having grown up
and the demands of her educational curriculum being what it is,
the mother may be given some time to interact with the child
during such vacations. We find merit in this contention of the
mother. It is true that the mother is keeping the custody of the
child throughout the year except vacations. The quality of
interactions between the mother and the child would be
substantially different during vacations and during workings
days. In these circumstances, we are satisfied that directions
can be issued about the custody of the child during vacations.
We are satisfied that a direction can be issued that wherever the
vacation does not exceed 10 days, the last 3 days of the vacation
the child will be in the custody of the mother and till then in the
custody of the father. All vacations where number of days
exceed 30 days, the child shall be in the custody of the mother
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during the last 10 days and in the custody of the father for the
entire remaining period.
14. The learned counsel for the petitioner submits that the
school assignments that the child is expected to comply during
vacation are not being complied with properly as the father is
not paying due attention to that. We need only observe that the
respondent/father must ensure that during the time that the
child is with him during vacations the child attends to the school
assignments.
15. Both sides agree and it is directed that the child shall
be taken by the father from the school and shall be returned to
the school. The learned counsel for the petitioner submits that
the petitioner finds it embarrassing that the divorced husband/
the respondent herein should visit her house in the name of the
custody of the child. The learned counsel for the respondent
immediately submits that the respondent does not want to go to
the house of the petitioner. According to him, even now the
child is being taken from the school and returned at the school.
The same arrangement can continue. The learned counsel for
the petitioner wants to clarify and it is clarified that if the date
on which the child is to be returned by the father happens to be
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a holiday for the office of the school, the child can be returned
on the next working day morning.
16. This writ petition is, in these circumstances, allowed to
the above extent. Needless to say, if there are compelling
change of circumstances, the parties shall be at liberty to
approach the Family Court for further modification of the
directions.
R. BASANT
(Judge)
M.C. HARI RANI
(Judge)
Nan/
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