IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18308 of 2010(R)
1. CATHERINE,AGED 41 YEARS,D/O.JOISE,
... Petitioner
Vs
1. SURESH KUMAR,S/O.YESUDASAN,IMMANUVEL,
... Respondent
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.J.JAYAKUMAR
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :03/08/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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W.P.C.No.18308 of 2010
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Dated this the 3rd day of August 2010
J U D G M E N T
Basant,J
The petitioner is present. Respondent is also present.
Respondent has come to this Court along with the child. We
permitted the child to have interactions with the mother. After
the lunch recess, we interacted with the child. The child has
been with the father only from 29/4/2010. It is reported that the
respondent/father, without permission of the Family Court, had
taken the child out of the jurisdiction of the Family Court to his
place of employment abroad. The learned counsel for the
petitioner disputes this assertion and submits that the child was
being clandestinely detained in India at some unknown
destination. The respondent has not produced the original of the
passport to satisfy us that the child had been taken out of India
to his place of employment.
2. Our interactions with the child reveals that the child,
aged 11 years, is labouring under some fear and is not speaking
genuinely, openly or voluntarily. The child appears to be afraid
to go to its mother. During our interactions with the child, the
W.P.C.No.18308 of 2010 2
child stated before us that he is willing to go with the maternal
grand father and grand mother of the child.
3. This writ petition is filed to challenge the order dated
22/5/2010 in O.P.(G&W) No.618/10 passed by the Family Court,
Nedumangad under which the child has been permitted to be in
the custody of the father, the respondent herein, until further
orders.
4. We have heard both counsel. We have interacted with
the parties. We are persuaded to agree that the impugned order
deserves to be set aside and the court below must be directed to
pass fresh orders regarding the interim custody of the child. In
coming to this conclusion, we take note of the fact that the father
of the child has taken the child out of India pending disposal of
the O.P without the permission of the Court. The child was not
made available before court in spite of the directions issued by
this Court. We do also take note of the fact that the child is not
too happy now to go with the petitioner/mother. The child is
aged only 11 years. He is a student of standard VI. We are of
the opinion that too much importance cannot be attached to the
reluctance of the child to go with the mother now. We take note
of the apprehension of the mother of the child that the
W.P.C.No.18308 of 2010 3
respondent who has the passport of the child with him and who
is unwilling to surrender the original of the passport before court
now may clandestinely remove the child out of India if custody
were given to the father. At his place of employment, the
respondent has no other person to look after the child, it is
pointed out.
5. At any rate, we are satisfied that the Family Court can
be directed to dispose of the matter afresh. The matter is now
pending before the Family Court, Thiruvananthapuram. Both
sides agree that they shall appear before the Family Court on
04/08/2010.
6. Hand over copy of this judgment to both counsel
immediately. The child shall go with its mother and maternal
grandparents today. The child shall be produced before the
Family Court on 04/08/2010 at 11 O’ clock. Appropriate further
directions shall be issued by the Family Court after considering
the submissions of all the parties including the informed
preferences of the child. The Family Court shall pass
appropriate further orders regarding interim custody of the child
when the child is produced before the Family Court by its mother
on 04/08/2010. A report shall be submitted by the Family Court
W.P.C.No.18308 of 2010 4
to this Court about the action taken. Whatever be the interim
orders, we further direct that the Family Court must proceed to
dispose of O.P.No.618/2010 as expeditiously as possible.
7. This writ petition is allowed as above. We take note of
the reluctance of the child – evidently abetted by the father of the
child, to go along with his mother. The learned Government
Pleader is directed to ensure that the child and its mother/
maternal grand parents are given police assistance of women
police constables not in uniform to take the child to their place of
residence.
8. We further direct the respondent to produce the
passport of the child before the Family Court on 04/08/2010 for
the perusal of the Court and for appropriate further directions to
ensure that the child is not taken out of India without the
permission of the Family Court.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
jsr
// True Copy// PA to Judge
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W.P.C.No.18308 of 2010 6
R.BASANT & M.C.HARI RANI, JJ.
.No. of 200
ORDER/JUDGMENT
19/07/2010