Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941 OP (FC).No.82 of 2019 AGAINST THE ORDER IN I.A. NO.1742/2018 IN OP 635/2018 of FAMILY COURT, OTTAPPALAM
PETITIONER/S: SHINE DAS,AGED 37 YEARS S/O.HARIDASAN, CHALANA, KANDAMKULAM, METHLA, KODUNGALLUR, THRISSUR. BY ADVS. SMT.N.DEEPA SRI.K.SUJAI SATHIAN RESPONDENT/S: DEEPTHI,AGED 29 YEARS D/O.MUKUNDAN, OOTIRI HOUSE, MANJAKKADU, SHORANUR, PALAKKAD. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: OP (FC).No.82 of 2019 2
JUDGMENT
K. HARILAL . J, Petitioner and the respondent are husband and wife and two children were born out that wedlock. The elder son by name Indeevar Das was aged four years and the younger one by name Indu Shekhar Das was aged three years at the time of filing of the Original Petition. The matrimonial relationship between the petitioner and the respondent has become strained and now they are living separately and the children are in the custody of the respondent.
2. The petitioner herein filed O.P.(Guardian) No.635 of
2018, seeking permanent custody of the children. Along with the said O.P., he has filed I.A.No.1742/2018, seeking interim custody of the children on all Saturdays and Sundays of each month. Subsequently, he filed I.A. No.1835/2018, seeking interim custody of the child during Christmas holidays.
3. The respondent resisted the said applications contending that the petitioner threatened the children while making quarrel with the respondent at her matrimonial home.
4. The Family Court, after considering the objection
raised by the respondent, passed Ext.P4 common order
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granting visitation right alone to the petitioner. During Christmas holidays, the petitioner was given interim custody on 27.12.2018 from 10.00 am to 02.00 p.m in the court premises. In I.A. No.1742/2018, petitioner was given custody on 1st Saturday of every month at 10.00 a.m to 03.00 pm in the Family Court premises. The legality and correctness of the aforesaid orders are under challenged in this O.P.(F.C).
5. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
6. Going by the impugned order, we find that overnight
custody of the children with the petitioner is denied on the sole reason that, at that time, the children were aged four years and three years respectively. Now the elder son is aged five years and the younger son is aged four years. Earlier, this court, by the order dated 10.04.2019, interim custody was given to the petitioner from 10.00 am on 16.04.2019 till 10.00 am on 26.04.2019. Nothing happened against the interest of the children, during the said period of overnight stay with the petitioner. Therefore, we do not find any reason to deny the overnight stay of the children to the petitioner. Moreover, we are of the opinion that both parents are equally
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entitled to have the interim custody of the children with overnight stay to develop love and affection between both parents and the children. In the above view of, the petitioner is given interim custody of the children on 10.00 a.m on the last Saturday of each month till 04.00 p.m on the ensuing Sunday. Besides, the petitioner is given interim custody of the children for the first five days in Christmas holidays. The petitioner is allowed to take the children from the house of the respondent and he must return the children at the house of the respondent. It is submitted by the counsel appearing for the petitioner that now the pleadings are complete and the O.P is ripe for disposal. Having regard to the said submission, the Family Court, Oattapalam is directed to dispose of the aforesaid O.P. at the earliest, at any rate, within a period of four months from the date of receipt of a copy of this
judgment.
Sd/- K. HARILAL, JUDGE Sd/- /- ANNIE JOHN, JUDGE ajt OP (FC).No.82 of 2019 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE I.A.NO.1742/2018, DATED 31.10.2018 FILED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN EXT.P1, DATED 21.12.2018. EXHIBIT P3 TRUE COPY OF THE PETITION, I.A.NO.1835/2018, DATED 27.11.2018 FILED BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE COMMON ORDER IN
I.A.NO.1742/2018 AND I.A.NO.1835/2018, DATED 24-12-2018 ON THE FILE OF THE FAMILY COURT, OTTAPPALAM.