Jobinson Mathew vs Riya Thomas

Devan Ramachandran, J.

The petitioner assails Ext.P11 order of the learned Family Court, Kottayam, on the ground that it has granted him interim custody of his child only for a short duration between 14.09.2024 and 16.09.2024. He points out that he had filed I.A.No.19/2024, namely Ext.P10, wherein, he had asked for custody of the child from 12.09.2024 till 22.09.2024 – being Onam holidays for the child; but that it has been wrongly recorded in Ext.P11 that he acceded to the afore said arrangement. He thus prays that Ext.P11, to the extent impugned be set aside.

We notice from the files that this Court had attempted to serve notice on the respondents through a Special Messenger. The Messenger has returned reporting that the respondents refused to accept the summons; and that, in fact, the gate of their house was kept locked, thus incapacitating him from entering the premises.

We have examined Ext.P11 and it records that the directions therein are with the consent of both sides.

It is also without doubt that none of the pleadings on record indicate that the petitioner did not accede to the arrangement; but it is argued before us by Sri.A.Muhammed Musthafa – learned counsel for the petitioner, that, what was conceded to by his client was only in I.A.No.12/2024 - filed by the respondents, to modify an earlier arrangement regarding the interim custody, but not qua Ext.P10, which is the application filed by his client seeking custody of the child during Onam holidays.

As we have already said above, normally, this Court would have been loath in interfering with Ext.P11, because it says that the arrangement therein has been conceded to by the parties. If the respondents were present before us today, perhaps, we could have got a better view of the matter; but when they have refused to do so, as already recorded above, we are constrained to issue orders, as we deem it appropriate.

When one looks through Ext.P11, the learned Family Court has restricted the interim custody of the child to the petitioner-father from 14.09.2024 to 16.09.2024, saying that the child has to participate in the Onam Program till 2 P.M. on 14.09.2024 and that her vaccination is due on 18.09.2024.

Even assuming that the afore can be accepted, one fails to understand why the child could not be ordered to be with the father till at least the morning of 18.09.2024. We are, therefore, of the firm view that, in spite of the record of consent in Ext.P11, we will be justified in modifying it, since it will cause no prejudice to either of the parties.

In the afore circumstances, we allow this Original Petition to the limited extent of modifying Ext.P11; thus allowing the child to be in the interim custody of the petitioner from 2 P.M. on 14.09.2024 till 10 A.M. on 18.09.2024. In all other respect, the said order will remain unaltered.

We, however, clarify that this order will have no bearing on the consideration of Ext.P10 application, if it is still pending; and that the learned Family Court will be at liberty to deal with it in accordance with law, if it becomes so warranted in future.