Kerala High Court
Annu Susan George vs Sachin Narayana Pillai on 11 November, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
OP(FC)NO.448 OF 2024 1 2024:KER:84413
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS.JUSTICE M.B.SNEHALATHA
MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946
O.P.(FC)NO.448 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 13.10.2023 IN OP NO.1551
OF 2015 OF FAMILY COURT, ERNAKULAM
PETITIONER:
xxxxxxxx
BY ADV Sreekala A
RESPONDENT:
xxxxxxxxx
BY ADV MADHU RADHAKRISHNAN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
11.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(FC)NO.448 OF 2024 2 2024:KER:84413
JUDGMENT
Devan Ramachandran, J.
By the efflux of time, during which this matter has been pending before this Court, there appears to be so a silver lining; and the parties are in consent, at least substantially.
2. This petition, filed by the mother of two minor children, challenges Ext.P6 order of the learned Family Court, Ernakulam, whereby, her request to take them abroad, to join her thus enabling them to be with her, during her employment, has been declined.
3. The petitioner explains that the impugned order has been issued only because there was an earlier memorandum of settlement between the parties - the judgment and decree having been delivered on its terms - as per per which, certain days were reserved in favour of the respondent for visitation and overnight custody over the children. The petitioner asserts that this requires to be modified because, otherwise, the children will not be able to be, with her while she is abroad, working as a doctor.
4. Before we move forward, we must record that there were certain orders issued by this Court during the life of this case.
5. The parties appeared before us, along with the children, for the first time on 13.8.2024; on which day, we directed them to appear before the Counsellor of the Family Counselling Centre attached to this OP(FC)NO.448 OF 2024 3 2024:KER:84413 Court. Thereafter, on 19.8.2024, the parties were again present before us and we indited our opinion gathered through interactions in the order of the said day, which is as under:
"Read order dated 13.8.2024.
The parties and the children are again present before us. We interacted with both the children together and individually and they made it unequivocally clear that they want to continue with the mother. In fact, the younger one, Johan, was inconsolable and crying throughout, even mentioning that he fears to go to his father on the weekends; though the elder son Siddharth appeared non-committed, but said that he will not go unless the younger brother also accompanies him.
We must, however, record that what we saw during interaction today was rather unusual because, both the children appeared to be very nervous and fearful. The younger child - Johan, cried the whole time and even the mention of his father's name, made him more nervous. We thought that we must, therefore, ask the elder son - Siddharth, why this was so and requested Johan to be in a separate room, but this was objected to by Siddharth, who appeared to be very scared that Johan may be taken away from him. Siddharth was not crying, but was twisting his hands constantly, saying that he wants to be with his brother and that if the latter does not want so, he also will not go to his father during the weekends.
Obviously, the matter will have to be heard on merits. List, therefore, on 23.8.2024."
6. Thereafter, Sri.Madhu Radhakrishnan - learned counsel for respondent, produced certain documents, stated to be the conversation between the father and the children; and both sides offered that they will appear before the Family Counselling Centre again along with them.
7. Unfortunately, the report of the Counsellor did not give us much hope; and therefore, at the request of both sides and particularly taking note of the behavior of the children, we referred them for an evaluation by OP(FC)NO.448 OF 2024 4 2024:KER:84413 a Clinical Psychologist.
8. On 26th September 2024, we passed a further order, based on the report of the Clinical Psychologist, which is extracted ut infra for ease of reference:
"Read order dated 10.09.2024.
2. The clinical Psychologist - Smt.Akhila R.Krishna has made available a report for our inspection.
3. In the report, the learned Psychologist has dealt with the issues of the children in great detail and has recommended that both children engage in "Parent - Child Interaction Therapy (PCIT)." She has further recommended "supervised sessions that allow the father and children to interact in a structured manner" (sic); saying that this can "facilitate positive experiences and strengthen the relationship" (sic).
4. We are in approval of these recommendations.
5. We, therefore, direct the parties to appear with the children before the learned Psychologist at 11 A.M. on 27.09.2024. We also direct the parties to suffer the expenses for the psychological evaluation and therapy equally and the hospital will issue a receipt indicating the same, which shall also be made available to us along with the next report of the Psychologist, which we request to be made available to us on or before 10.10.2024.
6. Needless to say, if the clinical Psychologist is to require further sessions, she will be at liberty to do so without having to obtain specific orders from us but within the afore time frame because we are aware that the mother of the children is planning to leave India for employment within a few days thereafter.
List on 11.10.2024."
9. Thereafter, on 15th October 2024, the petitioner offered that the children can be with the father for a few days, which led us to pass the following order on the same day:
"The children were present before us today along with the parties.
We are greatly pleased that the children show much less emotional distance from the father, and even talked to him and interacted with him with relative ease.
OP(FC)NO.448 OF 2024 5 2024:KER:84413 The elder child was more composed as usual; while, the younger one told us that he has been showing resistance to his father primarily because he is refusing to let them travel abroad with their mother.
We are told by the mother that the School examinations of the children are going on till the 21st of this month. She offered that the children can be with the father for a few days thereafter.
The father acceded to the above, saying this will help him bond with the children better; and that he will take them with him for a few days after their examination.
The afore are recorded.
List for further consideration on 28.10.2024."
10. On the 24th October, 2024, the children again came before us; when the learned counsel for the respondent asserted that they are still tutored and we, therefore, allowed his client to be in their full custody for 14 days from 28.10.2024, till today.
11. It is in such circumstances that the matter has been listed today before us.
12. Pertinently, the children were much more decisive today and the respondent appeared to be more or less acceding to their desires. The allegation relating to the tutoring of the children seemed to have tempered down, perhaps on account of the personal intervention of this Court as above.
13. The children reiterated that they want to go with their mother to Dubai and study there; and that they have asked their father to meet them constantly there, at his convenience. They added that, until such time as OP(FC)NO.448 OF 2024 6 2024:KER:84413 their mother is able to take them to Dubai, after obtaining admission in an appropriate school there, they will be with their maternal grandparents during the weekdays and with the father on the weekends. They also told us that they want their father to travel to Dubai very often; and that they will spend time with him as much as possible. They were also open to their father calling them on phone, including via video calls, on any day and at any time, subject to their convenience.
14. The learned counsel for the parties submitted that their clients fully subscribe to what their children are now saying; and that, therefore, this Original Petition can be disposed of on such terms. They however, added that, when it comes to school holidays and vacations, the time of the children, as per their school calender, can be divided between them equally; and that for this, if the children are in Dubai, the father will travel there.
15. In the afore circumstances, we allow this Original Petition and set aside the impugned order; thus ordering I.A.No.2/2023 in the following manner:
1. We record the unreserved consent of the respondent, that the petitioner - mother can take the children to Dubai, subject to her obtaining for them admission in a good school there.
2. Until such time the children are in India - awaiting their travel to Dubai, in terms of the directions above - their custody will be shared by the maternal grandparents and the father, with the weekdays being with the former and the weekends with the OP(FC)NO.448 OF 2024 7 2024:KER:84413 latter. For this purpose, we allow the father to take custody of the children at 10 a.m. on Saturday, to be dropped back to their maternal grandparents' home at 6 p.m. on Sunday. The place of exchange for this, will be the front gate of the residence of the maternal grandparents.
3. Once the children are taken to Dubai by their mother, we allow the father to call them at any time, on any day - but subject to their convenience and school timings - either through voice calls or video calls. We also leave liberty to the respondent -
father, to travel to Dubai at any time he wants; and adverting to the desire of the children, to be in their custody for the time he is there, but for not more than 15 days at a stretch. However, this will be subject to the desire and consent of the children and if they want a shorter period, the father will accede to it and return them to their mother.
16. We, however, clarify that, before the mother can take the children to Dubai as per our orders above, she must file an application before this Court, detailing the school admission, the phone number at which the children can be contacted, as also the address of the place where they are to reside. It is only after we pass orders on the said application, will she take the children abroad; but will be at liberty to apply for and process their travel requirements, including visa, immediately. For this, we direct the respondent - father to offer all facilitates including by subscribing his signature on any application that may be necessary as per law.
We reiteratingly clarify that, though this Original Petition, stands disposed of with the afore directions, the matter will be listed before us for appropriate orders on the application being made by the mother in terms OP(FC)NO.448 OF 2024 8 2024:KER:84413 of the afore reserved liberty.
We direct the Registry to maintain all reports about the parties, including psychiatric evaluation, in a sealed cover, without its copy being given to any of the parties, except under our specific orders. We also deem it necessary that the names and identities of the parties be anonymised fully. Steps for this shall also be taken forthwith.
SD/-
DEVAN RAMACHANDRAN JUDGE SD/-
M.B. SNEHALATHA
JUDGE
jes
OP(FC)NO.448 OF 2024 9 2024:KER:84413
APPENDIX OF OP (FC) 448/2024
PETITIONER'S EXHIBITS:
Exhibit P1 A TRUE COPY OF THE COMMON AWARD PASSED BY THE LOK ADALATH, ERNAKULAM
DATED 7.9.21
Exhibit p2 A TRUE COPY OF THE JUDGMENT AND DECREE IN OP 2278/21 DATED 26.8.22
Exhibit P3 A TRUE COPY OF THE I.A. 2 OF 2023 IN O.P 1551 OF 2015 DATED 7/3/2023 IS
Exhibit P4 A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 18/4/2023 FILED BY THE
RESPONDENT IN I.A. 2 OF 2023 IN O.P 1551 OF 2015 Exhibit P 5 TRUE COPY OF THE REPLICATION DATED 8/5/2023 Exhibit P6 A TRUE COPY OF THIS ORDER I.A. 2 OF 2023 IN O.P. 1551 OF 2015. DATED 13/10/2023 IN THE FAMILY COURT ERNAKULAM RESPONDENT'S EXHIBITS Exhibit R1(a) TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN IA NO 7 OF 2023 IN IA NO. 2 OF 2023 IN OP NO. 1551 OF 2015 DATED 02.06.2023 Exhibit R1(b) TRUE COPY OF THE FRONT PAGES OF PASSPORT OF THE RESPONDENT FOR THE PERIOD OF 28.05.2009 TO 27.05.2014 Exhibit R1(c) TRUE COPY OF THE PAGES OF PASSPORT OF THE RESPONDENT FOR THE PERIOD OF 29.10.2014 TO 28.10.2014 Exhibit R1(d) TRUE COPY OF THE ORDER DATED 13.11.2014 IN IA NO. 3519 OF 2014 IN OP NO. 1775 OF 2014 Exhibit R1(e) TRUE COPY OF THE CONFIDENTIAL REPORT SUBMITTED BY DR. S.D. SINGH DATED 06.01.2015 Exhibit R1(f) TRUE COPY OF THE CONFIDENTIAL REPORT SUBMITTED BY DR. S.D.SINGH DATED 12.01.2015 Exhibit R1(g) TRUE COPY OF THE ORDER DATED 02.02.2015 IN IA NO. 3519 OF 2014 IN OP NO 1775 OF 2014 Exhibit R1(h) TRUE COPY OF THE PSYCHIATRIC REPORT SUBMITTED BY DR. C.J. JOHN DATED 09.04.2015 Exhibit R1(i) TRUE COPY OF THE REPORTS SUBMITTED BY CLINICAL PSYCHOLOGIST MS. MABLE DAVIS DATED 23.03.2015 Exhibit R1(j) TRUE COPY OF ORDER DATED 03.02.2016 IN IA NO. 257 OF 2016 IN OP NO. 1775 OF 2014 Exhibit R1(k) TRUE COPY OF THE ORDER DATED 28.11.2016 IN CON. CASE (CIVIL) NO. 2068 OF 2016 Exhibit R1(l) TRUE COPY OF THE JUDGMENT DATED 05.12.2016 IN CON. CASE (CIVIL) NO. 2068 OF 2016.
Exhibit R1(m) TRUE COPY OF AFFIDAVIT AND PETITION FILED IN IA NO. 3003 OF 2017 IN OP NO. 1551 OF 2015.
Exhibit R1(n) TRUE COPY OF THE OBJECTION FILED IN IA NO. 3003 OF 2017 IN OP NO. 1551 OF 2015 DATED 29.08.2017 Exhibit R1(o) TRUE COPY OF THE ORDER DATED 31.08.2017 IN IA NO. 3003 OF 2017 IN OP NO. 1551 OF OP(FC)NO.448 OF 2024 10 2024:KER:84413 2015 Exhibit R1(p) TRUE COPY OF MEDICAL REPORTS FROM LOURDES HOSPITAL DATED 08.11.2017 Exhibit R1(q) TRUE COPY OF IA NO 3841 OF 2017 IN OP NO 1551 OF 2015 DATED 09.12.2017 Exhibit R1(r) TRUE COPY OF THE LETTER FROM SPECIALITY DIAGNOSTIC LABORATORIES DATED 08.03.2018 Exhibit R1(s) ), TRUE COPY OF THE RANK LIST PUBLISHED BY KPSC DATED NIL IN RANK LIST NO.
489/2021/SS VI Exhibit R1(t) TRUE COPY OF APPOINTMENT CHART DATED NIL WITH NO. RIE(1) 3905/2020/GW Exhibit R1(u) TRUE COPY OF THE ORDER DATED 27.03.2021 IN IA NO 3035 OF 2018 IN OP NO. 1775 OF 2014 Exhibit R1(v) TRUE COPY OF THE ORDER DATED 30.06.2022 IN OP(FC) NO. 203 IN 2022 Exhibit R1(w) TRUE COPY OF THE CERTIFICATE ISSUED BY REGI PANIKKAR & ASSOCIATES, CHARTERED ACCOUNTANTS DATED 15.09.2023 Gaurav Nagpal (2009) 1 SCC 42; Paras 2, 17, 38, 43, 50; Best interest of the child.
v.Sumedha Nagpal Nil Ratan
(2008) 9 SCC 413; Para 24; Best interest of the child.
Kundu v.
Abhijit Kundu
Vivek Singh v. 2017) 3 SCC 231; Para 16; Parental Alienation Syndrome coined Romani Singh Sheoli Hati v. (2019) 7 SCC 490; Para 16; Parental Alienation Syndrome expanded Somnath Das Mausami Moitra Ganguli (2008) 7 SCC; Para 10; Financial prowess and capacity of parents v. Jayant Ganguli Roxann (2015) 8 SCC 318; Paras 5, 10; Focus on joint parental responsibility Sharma v.
Arun Sharma
Dhanwanti
(1998) 1 SCC 112; Para 8; Child's welfare
Joshi v.
Madhav Unde
M v. State of SCC OnLine Del 11361; Para 45-50; Interest of the Child as paramount consideration NCT State of (2008) 2 SCC 660; Para 11 and 12: final and binding nature of Lok Adalat Awards Punjab v.
Jalour Singh Bhargavi (2018) 13 SCC 480. 14; Para 29; non-appealability of award unless on grounds of fraud or Constructions coercion.
v. Kothakapu Muthyam Satyadhyan AIR 1960 SC 941; Para 7; Re-litigation of same issue and same parties barred by re judicata. Ghosal v. Smt. Deorajin Debi Exhibit R1(X) THE TRANSCRIPT OF THE CONSERVATION HELD ON 10/09/2023 WITH ME AND MY MINOR SONS SIDDHARTH SACHIN AND JOHAN SACHIN Exhibit R1(Y) THE TRANSCRIPT OF THE CONSERVATION HELD ON 03/08/2024 WITH ME AND MY MINOR SON SIDDHARTH SACHIN Exhibit R1(Z) THE PEN DRIVE CONTAINING BOTH THE CONVERSATION IS PRODUCED AS A OP(FC)NO.448 OF 2024 11 2024:KER:84413 MEMORANDUM OF OBJECT Exhibit R1(AA) SOME OF THE SCREENSHOTS OF THE WHATSAPP CONVERSATION BETWEEN THE DR ASHOK KOMARANCHANTH AND MYSELF FROM 28TH APRIL 2024 – AUGUST 27 2024 Exhibit R1(AB) THE LIST OF THE PSYCHIATRIST AND CLINICAL PSYCHOLOGIST IN FOUR LEADING HOSPITALS IN ERNAKULAM // TRUE COPY // P.S. TO JUDGE