Kerala High Court
Divya. S. Nair vs Arunjith Sasidharan on 3 February, 2023
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
O.P(FC) NO.1 OF 2023
AGAINST PROCEEDINGS DATED 19.11.2022 IN I.A.NO.3 OF 2022 IN O.P(G
AND W)105 OF 2020 ON THE FILE OF THE LEARNED FAMILY COURT,
KOTTAYAM AT ETTUMANOOR DIRECTING THE MINOR CHILD, DHEERAJ S.NAIR
TO BE PRODUCED BEFORE COURT ON 03.12.2022
PETITIONER/RESPONDENT IN I.A NO.3 OF 2022 IN OP (G AND W) 105 OF
2020:
DIVYA. S. NAIR
AGED 34 YEARS
D/O.SASIDHARAN NAIR, 'JAYASREE', KUMARANELLORE TEMPLE
ROAD, KUMARANELLORE P.O., KOTTAYAM, PIN - 686016
BY ADVS.
A.PARVATHI MENON
P.SANJAY
PAUL VARGHESE (PALLATH)
KIRAN NARAYANAN
PRASOON SUNNY
RAHUL RAJ P.
AMRUTHA M. NAIR
RESPONDENT/PETITIONER IN I.A.NO.3 OF 2022 IN O.P.(G AND W) 105 OF
2020:
ARUNJITH SASIDHARAN
AGED 39 YEARS, S/O.SASIDHARAN NAIR, 'SURABHI',
MAVELIKKARA P.O, PIN - 690101
BY ADVS.
P.C. Haridas Pulickal Chandrasekhara pillai
P.S.GOVIND(K/000824/2022)
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON
10.01.2023, THE COURT ON 03.02.2023 DELIVERED THE FOLLOWING:
2
O.P.(FC) No.1 of 2023
JUDGMENT
P.G.Ajithkumar, J.
The respondent in O.P(G&W) No.105 of 2020 of the Family Court, Kottayam at Ettumanoor has filed this Original Petition under Article 227 of the Constitution of India. The petitioner seeks to set aside Ext.P16 to the extent it directs production of the child Dheeraj.S.Nair before the Family Court.
2. On 04.01.2023 notice was directed to be served on the respondent. The respondent entered appearance through his learned counsel.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. O.P(G&W) No.105 of 2020 was filed by the respondent seeking to appoint him the guardian of the child and to give him custody. A compromise was entered into between the parties on 18.09.2020. O.P(G&W) No.105 of 2020 was disposed of accordingly. The respondent later filed I.A.No.2 of 2022 seeking to modify the said judgment, which 3 O.P.(FC) No.1 of 2023 was rendered on the basis of a compromise agreement. He has also filed I.A.No.3 of 2022 for a direction for production of the child before the Family Court. The petitioner has filed counter affidavits in both the said interlocutory applications. She has also produced medical reports to show that production of the child before the court would not be conducive to the interest and welfare of the child. On earlier two occasions, the child was produced before the Family Court in terms of the directions in that regard, and that created much mental strain and agony to the child. The grievance of the petitioner is that the Family Court, without considering those aspects, had directed production of the child before the court.
5. Earlier the petitioner has filed O.P.(FC) No. 672 of 2022 complaining that a certified copy of the proceedings dated 19.11.2022 was not issued to her. As per the direction in the judgment in O.P.(FC) No.672 of 2022, a copy of the said proceedings was issued to the petitioner, which is produced as Ext.P16. That proceedings would show that the petitioner was directed to produce the child before the Family 4 O.P.(FC) No.1 of 2023 Court on when the order in I.A.No. 2 of 2022 is proposed to be pronounced.
6. As per Ext.P2(a) decree, which was passed in terms of Ext.P2 (b) compromise, the respondent was given permission to meet the child at the school on any of the two working days in a month. Interim custody during Onam and Christmas holidays and also during summer vacations was allowed to the respondent. He has filed I.A No.2 of 2022 to modify Ext.P2(a) decree. Along with I.A No.2 of 2022, the respondent filed IA No.3 of 2022 to direct the petitioner to produce the child before the Court. Petitioner filed objections in both those petitions. The Family Court after hearing the said interlocutory applications, Exts.P3 and P5, posted the matter to pronounce orders. Simultaneously, the petitioner was directed to produce the child before the Court.
7. The petitioner would contend that production of the child before the Court on earlier occasions resulted in much strain and trauma to the child and therefore his repeated production before the Court should be avoided. He has produced Exts.P3 series and P4 series, which are documents 5 O.P.(FC) No.1 of 2023 showing that the child was taken to the hospital with allegations that stress related complications were developed in him. Whether or not such developments occurred as a result of his production before the Court or the visit of the child by the respondent are matters to be considered by the Family Court.
8. The respondent filed I.A No.2 of 2022, Ext.P3 pointing out change of circumstances and the necessity for modifications to the custody order. In order to pronounce orders on that application, production of the child before the Court is unnecessary. The petitioner alleges that frequent production of the child before the Court results in developing stress and mental trauma to the child. Needless to say that that production of a child before a Court can be insisted only on unavoidable circumstances. As per Ext.P2(a), the respondent has the right of visitation of the child. Till the said decree is modified, the parties have to honour the terms in it.
9. In such circumstances, we are of the view that the order of the Family Court directing the petitioner to produce the child before the Family Court at the time of pronouncing 6 O.P.(FC) No.1 of 2023 the order in I.A.No.2 of 2022 is unnecessary. Therefore the proceedings dated 19.11.22 of the Family Court, Kottayam at Ettumanoor, to the extent it directs production of the child, Dheeraj.S. Nair before the Court is set aside.
This original petition is allowed to that extent. The Family Court, Kottayam at Ettumanoor can proceed with I.A. Nos.2 and 3 of 2022 in accordance with law.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE PV 7 O.P.(FC) No.1 of 2023 APPENDIX OF OP (FC) 1/2023 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE COPY OF GOP 105/2020 Exhibit P2(a) COPY OF THE DECREE DATED 24.11.2020 IN OP 105/2020 Exhibit P2(b) TRUE COPY OF THE COMPROMISE PETITION/AGREEMENT SIGNED BY BOTH PETITIONER AND RESPONDENT DATED 18.09.2020 Exhibit P3 TRUE COPY OF THE IA NO.2/2022 IN OP (G&W) NO.105/2020 FILED 21.04.2022 BASED ON EXT P1 AGREEMENT BY GRANTING THE PERMANENT GUARDIANSHIP CUSTODY Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT IN IA NO.2/2022 IN OP (G&W) NO.105/2020 FILED BY PETITIONER DATED 05.07.2022 Exhibit P5 TRUE COPY OF THE IA 3/22 IN OP(G&W) NO.105/2020 FILED BY THE RESPONDENT IN FAMILY COURT AND ALSO AFFORDS HIM TEMPORARY CUSTODY OF THE CHILD DATED 20.04.2022 Exhibit P6 TRUE COPY OF THE COUNTER FILED BY PETITIONER DATED 05.07.2022 Exhibit P7 TRUE COPY OF THE LETTER SUBMITED BY THE PETITIONER BEFORE THE PRINCIPAL OF THE SCHOOL INFORMING THE SCHOOL AUTHORITIES ABOUT THE COMPROMISE DECREE PASSED IN THE ABOVE CASE AND TO ALLOW THE RESPONDENT TO COMPLY THE DECREE PASSED BY THE HON'BLE COURT DATED 8.06.2022 Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF EP NO.29/2021 FILED BY RESPONDENT 8 O.P.(FC) No.1 of 2023 ADMITTING THE COMPROMISE DECREE FOR EXECUTING THE SAME COMPROMISE DECREE DATED 14.09.2021 Exhibit P9 TRUE COPY OF THE CERTIFICATE OF ASIA BOOK OF RECORDS DATED 19.10.2021 Exhibit P10 TRUE COPY OF THE CERTIFICATE OF INDIA BOOK OF RECORDS DATED 17.7.2021 Exhibit P11 COPY OF THE CERTIFICATE OF INDIAN BOOK OF RECORDS DATED 12.10.2021 Exhibit P12 COPY OF THE MATHRUBHUMI NEWSPAPER DATED 09.08.2021 Exhibit P13(a) TRUE COPY OF THE O.P. TICKET DATED 28.07.2022 FROM MEDICAL COLLEGE, HOSPITAL, KOTTAYAM Exhibit P13(b) TRUE COPY OF THE MEDICAL REPORT DATED 28.07.2022 Exhibit P13(c) TRUE COPY OF THE TRIAGE FORM AND REPORT FROM THE EMERGENCY AND TRAUMA DEPARTMENT DATED 30.07.2022 Exhibit P14(a) TRUE COPY OF THE OP TICKET DATED 05.11.2022 Exhibit P14(b) CERTIFICATE ISSUED BY ASST. PROFESSOR, DEPARTMENT OF PAEDIATRICS, GOVERNMENT MEDICAL COLLEGE, KOTTAYAM DATED 22.11.2022 Exhibit P15 TRUE COPY OF THE SAID JUDGMENT DATED 05.12.2022 BEFORE THE HON'BLE HIGH COURT KERALA Exhibit P16 TRUE COPY OF THE CERTIFIED COPY OF THE PROCEEDINGS DATED 19.11.22 IN IA 3/2022 IN OP 105/2020