Rajeev. G. vs Smrithi Muralidharan

Pius C. Kuriakose, J.—Under challenge in this MAT Appeal filed by the father is the order dated 22.05.2012 passed by the Family Court, Thiruvalla in I.A No. 167/2012 in O.P (G&W) No. 532/2011. The prayer in the I.A filed by the father, appellant was that the terms contained in a compromise entered between the parties in MFA No. 49/2008 on 29.05.2008 regarding the interim custody of the minor son by name Goutham Adithya be revived and implemented. The learned Family Court under the impugned order which is described as review order, dismissed the application after ascertaining the views of the child who was found to be very anxious and uncomfortable at the prospect of his custody being given to his father. The ground mainly raised in this appeal is that the impugned order is bad and as father, the appellant should be permitted to have interim custody of his child in terms of the compromise which was entered into between the parties in the High Court, in MFA No. 49/2008. We are heard the submissions of Mr. Jacob P. Alex, learned counsel for the petitioner/appellant and Mr. Raja Vijayaraghavan, learned counsel for the respondent. Mr. Jacob P. Alex Submitted that as father of the child, the appellant is entitled to have at least interim custody of his son and the same should not have been denied. Mr. Raja Vijayaraghavan submitted that the main O.P itself has been listed for trial by the Family Court and it will suffice if the Family Court is directed to enquire into and take a final decision in the original petition. In reply Mr. Jacob P. Alex submitted that the child had by now been brain washed to such an extent that if the learned Judge of the Family Court ascertains the wishes of the child, it is very unlikely that the child will be agreeable for going along with his father. The counsel therefore requested that the Family Court be directed to permit the appellant father to have interaction with the child sufficiently so that the atmosphere is changed and the child realizes that the appellant his father loves him as much as the respondent his mother. Having considered the submissions addressed at the Bar, we are of the view that as O.P (G&W) 532/2011 is ripe for trial it is and not necessary to disturb the impugned order. At the same time, we dispose of this MAT Appeal, issuing the following directions to the Family Court, Thiruvalla.

Before taking up the trial of O.P (G&W) No. 532/2011, the Family Court, Thiruvalla will permit the appellant to have the company of the child Goutham Adithya for two hours each on at least two days. The appellant should be permitted to be with the child in the privacy of one of the rooms in the Court building. The trial of O.P (G&W) No. 532/2011 should be commence by the Judge of the Family Court only thereafter. We make it clear that this judgment of ours will not preclude the Judge of the Family Court in permitting the appellant to take out the child to his own residence which is said to be only 15 Kms away.