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2025 DIGILAW 2355 (KER)

VIVEK R v. Lakshm

2025-08-27

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

body2025
JUDGMENT : DEVAN RAMACHANDRAN, J. The petitioner challenges Ext.P4 order of the learned Family Court, Ernakulam, whereby, one of his children – the elder twin, has been directed to be handed over to the respondent –mother. 2. Sri.T.Naveen – learned Counsel for the petitioner, argues that the order impugned is infirm because: for the first, the child does not want to go to the mother; and for the second, even assuming that his client could be directed to hand him over to the mother, specific orders for visitation ought to have been provided for, which has been not done. He, however, conceded that his client was only directed to produce the child before the Court on 05.06.2025, for being handed over to the mother; but argued that such a direction, without provisions for his client to have visitation and interim custody over the children was extremely unfortunate. 3. Though we have recorded the submissions of Sri.T.Naveen as afore, the fact remains that many events took place during the time this matter was pending before us. 4. We issued notice in this case to the respondent by special messenger on 05.06.2025; and on 11.06.2025, Sri.T.Naveen appeared for the petitioner, to submit that his client has no objection in handing over the child to the respondent; but that this will prejudice his schooling at Chennai. The parties were referred to Counselling as requested by them on that day; and we got a report from the Counsellor attached to the Family Counselling Centre of this Court thereafter. On 12.06.2025 we passed a further order, which as under: - “The learned counsel for the petitioner – Sri.T.Naveen, submits that his client is trying for the reunion of his family and that he has made it so clear before the learned Counsellor also. The learned counsel for the respondent –wife, however, submitted that she requires to gain confidence before any movement in the afore direction can be fully thought of and therefore, requires both the children with her at least on 18.06.2025 and for a few days thereafter. Sri.T.Naveen offers that his client will bring the child to this Court on 18.06.2025. Post on 18.06.2025. “ 5. However, matters took a rather unfortunate turn thereafter, which is evident from the order of this Court dated 18.06.2025, below: “Read order dated 12.06.2025. 2. Sri.T.Naveen offers that his client will bring the child to this Court on 18.06.2025. Post on 18.06.2025. “ 5. However, matters took a rather unfortunate turn thereafter, which is evident from the order of this Court dated 18.06.2025, below: “Read order dated 12.06.2025. 2. Sri.T.Naveen, appearing for the petitioner, submitted that though his client is fully ready to hand over the child to the mother, he has been incapacitated from traveling to Kochi from Chennai because of a ligament injury. He offered that his client will pay for the flight charges for the mother to come to Chennai and pick up the child, as also to finance the latter's full trip. 3. Smt.R.Leela, appearing for the respondent, submitted that her client has apprehension of going to Chennai alone and picking up the child because of her earlier bitter experiences with the petitioner. She, therefore, prayed that her client be allowed to have someone to travel with her. - 4. Sri.T.Naveen - learned Counsel for the petitioner, agreed that his client will defray the expenses for the assistant also. 5. In the above circumstances, in modification of the order dated 12.06.2025, we allow the respondent – mother to travel to Chennai, along with a person of her choice; and to then go and pick up the child and bring him to Kochi. She will produce the child before us on 23.06.2025, on which day, we expect the petitioner also to be present in person if possible. Needless to say, we record the undertaking of Sri.T.Naveen that his client will defray the entire expenses for the mother and her assistant as also for the child, for their travel. List, therefore, on 23.06.2025.” - 6. On 23.06.2025, Smt.R.Leela – learned counsel for the respondent, submitted that in spite of the best efforts of her client and her assistant, they could not obtain the child in custody, accusing the petitioner of having tutored him; which imputation, however, was refuted by Sri.T.Naveen. 7. The learned counsel for the respondent, thereupon, requested that this Court depute a police officer, along with an Advocate Commissioner, to bring the child from Chennai; but which we did not agree to, fully understanding the consequence such action would have on the child. 8. We then considered this matter on 03.07.2025, when we passed the following order. Read order dated 23.06.2025. 2. 8. We then considered this matter on 03.07.2025, when we passed the following order. Read order dated 23.06.2025. 2. Sri.T.Naveen – learned counsel for the petitioner, says that his client is still incapacitated to travel; and that he has produced Ext.P9 in substantiation. 3. Smt.R.Leela – learned counsel for the respondent, however, submitted that, when her client went to Chennai - along with her assistant, who is also a lawyer - to take custody of the child, it was found that the petitioner had no mobility issues at all. 4. We cannot find favour with Ext.P9 without further inquiry. It is not our endeavour to bring the petitioner to this Court, but only that we want to see the child, to verify whether he has any alienation from his mother as asserted. Even if the said person is not keeping well, he can send the child with his parents, who are stated to be living with him and to be only 61 and 58 years respectively, in age. 5. When the petitioner refuses every avenue to bring the child to this Court, we are afraid that we will have to invoke other steps, which we do not want to do. 6. That apart, even if the petitioner has mobility issues, as asserted by him, we fail to understand why he cannot travel with the child to this Court, either with the assistance of a wheelchair or otherwise. 7. We, therefore, adjourn this matter to be called on 04.07.2025, for Sri.T.Naveen to obtain instructions from his client as to how he will ensure that the child is before us within the next week. List, therefore, on 04.07.2025. - 9. Finally, the parties appeared before us, along with the children and we had a detailed interaction with them. On that day, we allowed the mother to obtain interim custody of the child in question, so as to reunite the siblings - as evident from our directions on that day, ut infra. The parties were before us along with the children and we interacted with them. 2. The child in question (Vivan) was initially reluctant to be with the mother alone, searching for his father; but after we let them be with each other, as also with the twin brother, for over three or four hours in our Chambers, the situation changed. The parties were before us along with the children and we interacted with them. 2. The child in question (Vivan) was initially reluctant to be with the mother alone, searching for his father; but after we let them be with each other, as also with the twin brother, for over three or four hours in our Chambers, the situation changed. The child was playing with his twin and seemed very comfortable with the mother. 3. We asked the child if he wants to stay with his sibling, and he expressed great desire, though he wanted his parents to be together. Since this may not be possible as of now, we are of the view that, in order to better the bond between the siblings as also the mother, the child ought to be with them until the next posting date. 4. We, therefore, adjourn this matter to be called on 14.7.2025; and we allow the mother to retain custody of the child in question (Vivan), from now till 14.7.2025, when the parties, without the children will appear in person again. List, therefore, on 14.7.2025. 10. This matter was thereafter considered several times by us; and every such time, Sri.T.Naveen – learned counsel for the father, submitted that his client has no objection to the children being with the mother, but that he should be reserved rights of visitation and interim custody on specified dates, holidays and school vacations. Since the request of the father is the most apposite in the given circumstances, we persuaded the parties to obtain some agreeable solution; and we were told that the child in question has been admitted, along with his twin, at the “Bhavans Adarsh Vidyalaya”. However, the parties continued to be unable to see eye to eye, with the mother refusing the father any kind of access to the children, except within the lobby of her residential complex. - 11. Since Sri.T.Naveen persisted on behalf of his client, that the parties be given an opportunity of obtaining a reunion, we referred them again to the Family Counselling Centre of this Court, which has favoured us with the report dated 26.08.2025; but, which indicates that such a course may not be fully tenable as of now, unless the parties co-operate better with each other. 12. 12. We heard this matter again on 26.08.2025, when we thought there was a consent between the parties and passed an order providing the petitioner – father with visitation/interim custody over the children on certain specified days and times; but today, Smt.R.Leela informed us that no such consent had been given by her client and that she is not willing to trust the petitioner with either of the children even for visitation or interim custody. In other words, her stand was that the children cannot be given any access to the father. Pertinently, the submissions of Smt.R.Leela - in her own words - was that her client is not willing to give visitation or interim custody of the children to the petitioner until such time as she is able to “convince herself” that the latter “will not take away the children forcibly”. - 13. Needless to say, we are unable to fathom what this means, particularly when visitation and interim custody orders are issued by courts, with full competence and capacity to enforce it. It is wholly untenable that this Court should await parties to “convince themselves” that our orders will be respected and obeyed; and if we are to go by such assertions, then the edifice of the legal system would surely crumble. We will not and cannot countenance such submissions. - 14. As matters now stand, the child in question is with the mother solely on account of the intervention of this Court. This was done under the impression and hope that the mother will find solace and agree to viable solutions. The plea of the father, to see the children and take them out occasionally, or being in their interim custody for specified days, can never be found to be unconscionable or illegal. In fact, it is the right of the children to be with the parents; and we cannot denude it. - 15. The plea of the father, to see the children and take them out occasionally, or being in their interim custody for specified days, can never be found to be unconscionable or illegal. In fact, it is the right of the children to be with the parents; and we cannot denude it. - 15. This is more so because, when the child was brought to Kerala on our strict orders – extracted supra; and when he was presented before us for the first time, he refused to even go near the mother – as is fully admitted by her learned counsel; but, it was under our strong persuasion and constant prodding - which went on for several hours in our chambers, and even a day later - that the child agreed to even talk to his mother, much less be with her. It is thus that the child is now with the mother. 16. Therefore, the present rather intransigent attitude of the respondent – mother, that she will not allow the father to gain any access to the children – either for visitation or interim custody – unless she is able to “convince herself that he will not take them away forcibly” is beyond any logical or reasonable underpinning. - 17. We cannot help if the respondent does not trust this Court or the legal processes; but this cannot constrain us acting as per law. 18. Coming back to the merits of the impugned order, namely Ext.P4, the learned Family Court has only directed the petitioner to hand over the child to the mother - which he has now done, as seen above through our orders. Therefore, nothing remains for us to consider on merits further – especially when Sri.T.Naveen says that his client agrees to the children being with their mother, but with visitation and interim custody being reserved to him. It is, therefore, now for the learned Family Court to ensure that sufficient and apposite provisions are made for both the parties, with respect to the children. - 19. Sri.T.Naveen is right in contending that Ext.P4 does not provide for any right of visitation or interim custody of the children in his client’s favour. It is, therefore, now for the learned Family Court to ensure that sufficient and apposite provisions are made for both the parties, with respect to the children. - 19. Sri.T.Naveen is right in contending that Ext.P4 does not provide for any right of visitation or interim custody of the children in his client’s favour. However, we are of the firm view that this stage had not reached before the learned Family Court because, it was, at that time, only concerned about reuniting the children, for which, their interim custody was given to their mother, pending the Original Petition. - 20. That being said, we must disclose that when we passed interim orders, our singular concern was for the children; and our attempt was to ensure that they were not dragged into court, when the Original Petition is to be prosecuted. We genuinely believed that the parties will understand this and end their fight, so that the Original Petition before the learned Family Court itself could have been settled - which would have been certainly possible had the mother agreed before us to some arrangement for visitation and interim custody of the children in favour of the father. However, since she refuses to do so, we are left without any other option, but to direct the learned Family Court to pass appropriate orders in terms of law. - 21. That said, since the children are with the mother solely on account of our intervention, we are firm that the petitioner - father should be offered necessary visitation to his children for the next few days; so that the learned Family Court can thereupon take decisions as to the future course. In the afore circumstances, we dispose of this Original Petition, without finding against Ext.P4, but only since it is no longer relevant on account of the fact that the child is with the mother, which the petitioner- father does not oppose. - However, since the respondent - father has acceded to our earlier orders, to have the child handed over to the mother, we direct that they will be with him, in interim custody, from 10 AM till 6 PM every day on 30.08.2025, 31.08.2025, 2.09.2025, 03.09.2025 and 04.09.2025. - However, since the respondent - father has acceded to our earlier orders, to have the child handed over to the mother, we direct that they will be with him, in interim custody, from 10 AM till 6 PM every day on 30.08.2025, 31.08.2025, 2.09.2025, 03.09.2025 and 04.09.2025. The place of exchange for this shall be in front of the gate of the residence of the mother; and we clarify that the father will be entitled to take them with him any where within Kochi, but not outside. We caution that any violation of the time frames, or the dates, as afore fixed, by any of the parties will visit them with serious consequence from this Court. We also permit the respondent - father to talk to the children on phone – both video/audio calls –on any day and at any time of his choice – on all days when he is not in their interim custody; however, ensuring that this does not cause any disturbance to their curricular or extra curricular activities. We order the respondent – mother to ensure that this is facilitated without any impediment. - As the necessary corollary, we direct the learned Family Court to consider further steps, pursuant to Ext.P4, particularly with respect to the future visitation and interim custody rights over the father; and for such purpose, we direct the parties to appear before it at 11 AM on 11.09.2025. Sri.T.Naveen at this time intervened to request that the Original Petition itself be directed to be disposed of at the earliest by the learned Family Court, adverting to the factum of it having been pending from the year 2021. - Though we cannot fix timelines for final disposal of the Original Petition by the learned Family Court, being aware of the large workload it endures, we request it to dispose of the Original Petition without any avoidable delay.