Annie vs V.J.A.Richard on 2 June, 2010

Kerala High Court
Annie vs V.J.A.Richard on 2 June, 2010
       

  

  

 
 
  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.
             -------------------------------------------------
                  W.P.(C) No. 5881 of 2010-R
             -------------------------------------------------
             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

W.P.(C) No. 5881 of 2010 -: 2 :-

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

W.P.(C) No. 5881 of 2010 -: 3 :-

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

W.P.(C) No. 5881 of 2010 -: 4 :-

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.

W.P.(C) No. 5881 of 2010 -: 5 :-

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.

W.P.(C) No. 5881 of 2010 -: 6 :-

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

W.P.(C) No. 5881 of 2010 -: 7 :-

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

W.P.(C) No. 5881 of 2010 -: 8 :-

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/

W.P.(C) No. 5881 of 2010 -: 9 :-

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