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2012 DIGILAW 426 (KER)

LALIT RAJU PLATHOTTAM v. ANJU SARA VARKEY, SHRI VATRKEY MATHEW

2012-04-24

BABU MATHEW P.JOSEPH, K.SURENDRA MOHAN

body2012
JUDGMENT : Surendra Mohan, J The appellant has approached this Court aggrieved by the order of the Family Court, Kottayam in E.A. No.44 of 2012 in E.P.59 of 2010 in O.P.(G&W) No.995 of 2008. As per the order under appeal, the following directions have been issued to the appellant. "In the result, above E.A. is allowed as follows: (a) The 1st petitioner/mother is entitled to have custody of her minor child Adithya Lalith Plathottam during her period of stay at Kerala till 13.5.2012; MAT Appeal No. 262 OF 2012 (b) That the respondent shall hand over the child to the 1st petitioner/mother at 11 A.M. on 20.4.2012 at the premises of Family Court, Ettumanoor, and she shall hand over the child back to the custody of the respondent/father on 13.5.2012 at 11 A.M. at the very same premises. (c) No order as to costs." 2. The appellant is the father of the minor child. In compliance with the above direction, on 20.4.2012, the appellant had handed over the custody of the child to the respondent on 20.4.2012. 3. According to the appellant the disputes between him and his former wife, the first respondent regarding the custody of their minor child had been finally settled by the order of the Hon'ble Supreme Court in a petition for Special Leave to Appeal(civil)No.28139 of 2009, filed by him. The petitioner had moved the Hon'ble Supreme Court against the judgment dated 24.7.2009 of this Court in Mat Appeal No.506 of 2009. In the said appeal, a Division Bench of this Court had issued elaborate directions regarding the manner in which the custody of the minor child was to be shared between the appellant and his former wife. The appellant's former wife is working abroad. The Hon'ble Supreme Court worked out a settlement of all the issues between the warring spouses and in modification of the stipulations contained in the judgment of the Division Bench of this Court, incorporated three additional conditions that govern the custody of the child during holidays like Onam, Christmas and Easter. Though the mother of the child is abroad, visitorial rights have been given to the maternal grand-parents by the Apex Court. The Hon'ble Supreme Court has also stipulated the manner in which the custody of the child should be shared during summer vacation. 4. Though the mother of the child is abroad, visitorial rights have been given to the maternal grand-parents by the Apex Court. The Hon'ble Supreme Court has also stipulated the manner in which the custody of the child should be shared during summer vacation. 4. In the above circumstances, the respondents moved a petition to get the custody of the child under clause (8)(b) of the judgment of the Division Bench of this Court in Mat Appeal No.506 of 2009. That petition was resisted by the husband contending that the mother had no rights to claim custody of the child during summer vacation in view of clause (iii) of the order of the Hon'ble Supreme Court governing the situation. The Family Court went into the question, considered the relevant clauses and on an interpretation thereof held that the mother was entitled to have custody of the minor child for the period from 20.4.2012 to 13.5.2012, when she is available in India. This appeal is filed by the husband aggrieved by the said direction. 5. The respondents have filed Caveat No.415 of 2012. Therefore, a copy of this appeal was served on the caveator. We have heard the counsel for the appellant-father as well as the caveators at length. 6. The only question that arises for consideration is whether the mother is entitled to claim custody of the child during the period that she is available in India in view of clause (iii) of the order dated 16.9.2011 passed by the Hon'ble Supreme Court. 7. As already noticed above, as per the judgment of a Division Bench of this Court in directions have been issued stipulating the conditions subject to which custody of the minor child was to be shared among the husband and the wife. Clause 8(b) stipulated by the judgment of the Division Bench reads as follows. "He shall allow the first appellant/mother of the child to have custody of the child when she comes home from London and during her stay at Kerala without affecting his education. In that event the respondent/father shall hand over the child to the first respondent on the evening of every Friday and return the child on the next Sunday evening."(Emphasis supplied) 8. According to the counsel for the respondents, the above clause applies to a situation where the mother comes home from London. In that event the respondent/father shall hand over the child to the first respondent on the evening of every Friday and return the child on the next Sunday evening."(Emphasis supplied) 8. According to the counsel for the respondents, the above clause applies to a situation where the mother comes home from London. In such a situation, she is entitled to claim custody of the minor child, "during her stay at Kerala without affecting his education." Therefore, in view of the above stipulation, she is entitled to have custody of the child during her stay in India upto 13.5.2012. It is also pointed out by the counsel that the Hon'ble Supreme Court has only deleted conditions (c) and (d) of the Division Bench judgment substituting the said clauses with the clauses stipulated by the Apex Court. Clause 8(b) not having been so substituted, should be understood as governing the situation, where the mother comes home from London. It is the further contention of the counsel that the said clause would apply irrespective of whether it is the academic session or vacation for the child, provided the mother has chosen to come home. According to the counsel for the appellant, since the manner in which the custody of the child has to be shared during the summer vacations has been specifically provided by clause (iii) of the order of the Apex court the effect thereof cannot be diluted by a process of interpretation on the basis of the judgment of the Division Bench. Therefore, it is contended that the order of the Family Court is unsustainable and liable to be set aside. 9. We have given our anxious consideration to the rival contentions advanced before us. A perusal of the various directions contained in the judgment in Mat Appeal No.506 of 2009 shows that this Court had considered the question of sharing the custody of the child both during the academic session as well as the vacations of the child, separately. A reading of clause 8(b) makes it clear that the said clause refers to a situation during the academic session of the child. That is the reason why, the Court has taken care to direct that the mother was entitled to have custody of the child without affecting his education. A reading of clause 8(b) makes it clear that the said clause refers to a situation during the academic session of the child. That is the reason why, the Court has taken care to direct that the mother was entitled to have custody of the child without affecting his education. The Division Bench has further directed that the child shall be handed over to the mother on the evening of every Friday, to be returned on the next Sunday evening. The Division Bench was taking care to ensure that the education of the child remained unaffected by the change in custody that was stipulated by the said clause. 10. In sharp contrast, clause (iii) stipulated by the Hon'ble Supreme Court reads as follows. "(iii) During the summer vacation, the mother or the maternal grand-parents of the child shall have the custody of the child for a mutually agreed period of one week"(Emphasis supplied). 11. The above clause is to apply specifically to the summer vacation. During summer vacation "mother or the maternal grand-parents of the child" have been held entitled to have custody of the child for a mutually agreed period of one week. It is therefore clear that the mutual agreement arrived at between the parties as evident from the above clause relating to the manner of sharing of the custody of the child during summer vacation was that the mother or the maternal grand-parents would have custody only for the agreed period of one week. Since a specific clause has been incorporated with respect to the manner in which custody of the child is to be shared during summer vacation by the Hon'ble Supreme Court, it is the said clause that has to govern the period of summer vacations of the child. Rigor of the said clause cannot be diluted by a process of interpretation of clause 8(b) of the Division Bench judgment, as done by the Family Court. 12. We also notice that clause (i) of the order of the Hon'ble Supreme Court refers to holidays like Onam, Christmas and Easter. Clause (ii) gives visitorial rights to the maternal grand-parents also while the mother is abroad. 13. The above being the position, the process of interpretation adopted by the Family Court is unsustainable. The same is therefore set aside. 14. In the result; (a) The appellant is entitled to succeed. Clause (ii) gives visitorial rights to the maternal grand-parents also while the mother is abroad. 13. The above being the position, the process of interpretation adopted by the Family Court is unsustainable. The same is therefore set aside. 14. In the result; (a) The appellant is entitled to succeed. We accordingly allow the appeal, set aside the order of the Family Court dated 19.4.2012, (b) Respondents are directed to hand over custody of the minor child to the appellant at 11 a.m. on 27.4.2012, at Family Court, Kottayam.