Divya Rajan vs Bineesh P.B

A. Muhamed Mustaque, T

This original petition was filed challenging an order relating to custody. The petitioner-mother and the 1st respondent-father are non residents of India and currently employed in Kuwait. The marital disputes between them are pending before the Family Court, chavara and the Family Court, Ernakulam. The parties resolved their disputes and filed a joint petition for divorce invoking Section 13 B of the Hindu Marriage Act, 1955. The parties also have entered into an agreement regarding custody of the children born in their wedlock. There are disputes regarding the maintenance. In regard to the quantum of maintenance payable to the children by the 1st respondent-father, the parties have agreed for resolution of the disputes.

The petitioner appeared through online. She has been identified by the learned counsel appearing for her. The 1st respondent-father is present before this Court. We interacted with both parties. They are firm in their decision to dissolve their marriage. The divorce petitions filed by the petitioner before the Family Court, Chavara and by the 1st respondent- father before the Family Court, Emakulam are pending. We are of the view that the statutory cooling off period can be waived - since the parties are living separately for the last more than several years and the petitioner-wife filed the divorce petition in the year 2019. •

We are also of the view that the marriage can be dissolved based on the mutual consent of the parties. In regard to the custody of the children, the petitioner-mother is appointed as a natural guardian and permanent custodian of the children namely, Dakshina and Dekshith. It is agreed before this Court by both parties that the children will be taken to kuwait by the petitioner-mother, the natural guardian and permanent custodian. The 1st respondent-father will have the custody of the children on every Friday between 10 am and 5 pm. He is also permitted to contact the children whenever he wishes through video platform or over phone.

The children are now at the parental house of the 1st respondent. If the children are taken to Kuwait, the 1st respondent-father shall pay a sum of Rs.5000/-(Rupees Fife Thousand only) each to the children as maintenance. However, if the children remains in India, the 1st respondent-father is bound to take care of the children. We record the terms and conditions agreed by the parties in the 13 B application and that will form part of the judgment. In the light of settlement above, we dispose of this original petition with the following orders:

I We direct Family Court, Chavara to record the dissolution of marriage between the petitioner and the 1st respondent by mutual consent without insisting further appearance of the parties in O.P (Div) No.500 of 2019 within a period of two weeks.

II. O.P (G&W) No.2060 of 2020 before the Family Court, Ernakulam shall be disposed of recording the settlement of the parties before this Court in regard to custody of the children.

III.  We also direct the Family Court, Ernakulam to close O.P (G&W) No. 1604 of 2021 in the light of settlement arrived at between the parties before this Court.

IV.  The petitioner is permitted to process the VISA as a sole guardian of the children and the petitioner alone will be responsible for taking the children to Kuwait.

V.  The entire records including school records, Aadhaar cards etc., shall be handed over by the respondents to the petitioner-mother at the time in which the children are taken to Kuwait.