Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR.JUSTICE A.HARIPRASAD FRIDAY, THE23D DAY OF MAY20142ND JYAISHTA, 1936 OP (FC).No. 216 of 2014 (R) ---------------------------- PETITIONER(S)/PETITIONER: -------------------------- SMITHA.R., AGED36YEARS D/O.LATE RAJACHANDRA BABU, 'SIVAM', THIRUVALLAM THIRUVANANTHAPURAM. BY ADVS.SMT.K.MEERA SRI.BOBY MATHEW RESPONDENTS/RESPONDENTS: ------------------------- PRAMOD P.P., AGED38YEARS S/O.PRABHAKARAN, 'PRASANTHI', SPRA NO:414 NETTAYAM POST, PEROORKADA VILLAGE, THIRUVANANTHAPURAM-695013. *Addl.R2 PRINCIPAL, KENDRIYA VIDYALAYA SCHOOL, N.A.D. ALUVA, PIN-683103. *Addl.R3 PRINCIPAL, KENDRIYA VIDYALAYA SCHOOL NO.I, AFS, GORGAON-II. (ADDITIONAL RESPONDENT NOS.2 AND3ARE IMPLEADED VIDE ORDER
DATED254.2014 IN I.A.NO.6014/14) BY ADVS.SMT.CHINCY GOPAKUMAR FOR R1 SMT.K.S.SHALEEJA SRI.K.MAYANKUTTY MATHER,SC KENDRIYA VIDYALAYA SANGATHAN FOR R2 AND R3. THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON2305-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 216 of 2014 (R) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------ EXT.P1 : COPY OF THE JUDGMENT
DATED1504/2013 OF THE FAMILY COURT,ERNAKULAM IN OP.68O0 2013 EXT.P2 : COPY OF THE JOINT COMPROMISE PETITION DATED1504/2013 IN OP.679 OF2013ON THE FILE OF THE FAMILY COURT,ERNAKULAM EXT.P3 : COPY OF THE JUDGMENT
/COMPROMISE DECREE DATED1504/2013 OF THE FAMILY COURT,ERNAKULAM IN OP679OF2013EXT.P4 : COPY OF THE OP633OF2014FILED BY THE RESPONDENT,PENDING BEFORE THE FAMILY COURT,ERNAKULAM EXT.P5 : COPY OF THE I.A.1333/2014 FOR INJUNCTION FILED BY THE RESPONDENT IN EXT.P4 OP. EXT.P6 : COPY OF THE I.A.1334/2014 FOR INTERIM CUSTODY FILED BY THE RESPONDENT IN EXT.P4 OP. EXT.P7 : COPY OF THE OBJECTION FILED BY THE PETITIONER IN EXT.P4 OP. EXT.P8 : COPY OF THE OBJECTION FILED BY THE PETITIONER IN EXT.P5 I.A. EXT.P9 : COPY OF THE OBJECTION FILED BY THE PETITIONER IN EXT.P6 I.A. EXT.P10 : COPY OF THE ORDER
DATED1104/2014 PASSED BY THE FAMILY COURT ERNAKULAM IN EXT.P5 I.A.1333 OF2014IN OP NO:633 OF2014 RESPONDENT(S)' EXHIBITS ----------------------- EXT.R1(a) : COPY OF THE LETTER DATED304.2014 ISSUED BY THE PRINCIPAL OF KENDRIYA VIDYALAYA, NAD, ALUVA. EXT.R1(b) : PHOTOCOPY OF THE APPLICATION FORM FOR ADMISSION TO KENDRIYA VIDYALAYA, NAD, ALUVA ALONG WITH MY SERVICE CERTIFICATE. EXT.R1(c) : PHOTOGRAPH OF MY CHILD WITH THE1t RESPONDENT. EXT.R1(d) : PHOTOGRAPH OF MY CHILD WITH MY PARENTS AND IMMEDIATE FAMILY MEMBERS. EXT.R1(e) : PHOTOGRAPH OF MY CHILD WITH Mr.MANU WILLIAM STANLEY EXT.R1(f) : PHOTOGRAPH OF MY SON WITH the PETITIONER. //TRUE COPY// P.A.TO JUDGE ami/ V.K.MOHANAN & A.HARIPRASAD, JJ.
------------------------------- O.P.(F.C.)No.216 of 2014 ------------------------------- Dated this the 23rd day of May, 2014.
JUDGMENT
HARIPRASAD, J.
The petitioner is the respondent in Ext.P4 Guardian O.P., pending before the Family court, Ernakulam. She is aggrieved by Ext.P10 order passed by the Family court, issuing an interim injunction restraining the petitioner (respondent in the I.A.) from removing their child from the school where now he is studying and also from the jurisdiciton of the Family court, until further orders.
2. Short facts relevant for our purpose are as follows : The respondent herein married the petitioner on 18.8.2002. A boy child by name Advitheeya P. @ Appu was born in the wedlock on 11.7.2003. Thereafter, the marital relationship between the petitioner and the respondent became strained. The petitioner approached the Family O.P.(F.C.)No.216 of 2014 2 court, Ernakulam, with O.P.No.680/2013 under section 13 of the Hindu Marriage Act 1955, claiming divorce. That O.P. was allowed as per Ext.P1 judgment. Thereafter, the disputes prevailing at that time between the parties had been settled. Ext.P2 is the compromise petition executed by the parties and filed before the Family court in G.O.P No.679/2013. Subsequently, the petitioner re-married. Her second husband is permanently working in Delhi. The petitioner wanted to take her child to Delhi and continue his education in Delhi. When she made attempts in this regard, the respondent raised objections and he filed Ext.P4 O.P. for permanent custody of the minor child. In that matter, Ext.P10 interim order happened to be passed.
3. This Court on 25.4.2014 recorded the submission made by the counsel that, the Assistant Commissioner of Kendriya Vidyala Sangathan, Regional Office, Gurgaon, has approved the admission of petitioner's son, namely Advitheeya P., to standard VI, as per serial no.21 of his O.P.(F.C.)No.216 of 2014 3 proceedings bearing No.F.32331/2014/RO/GGN dated 17.4.2014. This fact was recorded and on that basis, this Court directed to keep the above seat vacant until further orders.
4. Heard the learned counsel appearing for the petitioner and the respondents.
5. The petitioner challenges Ext.P10 order on the basis that the child will have a bright future when he is admitted in a school at Delhi. Further, as per the compromise, the respondent accepted the right of mother to claim permanent custody. Per contra, the learned counsel for the respondent would contend that at the time of compromise, none of the parites had visualised such a situation as the one now created by the petitioner and no condition was prescribed regarding removal of the child out of Kerala. Admittedly, the petitioner challenges an interim order. The matter is pending before the Family court. After hearing both sides, we are of the view that, O.P.(F.C.)No.216 of 2014 4 the entire matter can be considered by the Family court, as the pleadings in the original petition have been completed. The ultimate issue to be resolved herein is the welfare of the child and for adjudicating that issue, we are of the view that evidence will have to be considered. Therefore, in our opinion, the matter can be effectively disposed of by the Family court, Ernakulam, after allowing the parties to adduce evidence touching upon the matters. The counsel for the petitioner submitted that in the meantime, the order passed, relating to keep a seat reserved for the child, should be continued. Of course, we do so. It is also submitted on both sides that the Kendriya Vidyala School in Delhi will be reopening only on 24.6.2014. So, in the interest of justice and in the facts and circumstances of the case, we allow this petition making following directions :
1. The parties shall appear before the Family court, Ernakulam, on 28.5.2014.
2. The parties shall get ready with the matter O.P.(F.C.)No.216 of 2014 5 and co-operate to proceed with evidence.
3. The Family court shall dispose of the matter on merits on or before 15.6.2014. Sd/- V.K.MOHANAN, Judge Sd/- A.HARIPRASAD, Judge ami/ //True copy// P.A. to Judge