Vincent Christopher vs State of Kerala and Others

R. Basant, J.—This judgment must be read in continuation of the earlier orders passed resting with the order dated 01/06/2010.

The petitioner has come to this Court complaining that two minor children of his, aged 11 years and 6 years, have been illegally detained by the 5th respondent, the mother of the children and the 6th respondent, the maternal grandmother of the children. According to the petitioner, O.P. No. 978/2005 was filed by him before the Family Court for getting permanent custody of the minor children. Interim orders were passed by the Family Court and such interim orders obliged the 5th respondent to produce the children before the Family Court to facilitate interaction/exercise of visitorial rights by the petitioner in respect of those two children. The petitioner came to this Court with this petition on 19/5/2010 complaining that the children were illegally removed and their whereabouts are not revealed to him. Consequently, he is unable to exercise his visitorial rights conceded to him vide interim order passed in O.P. 978/2005. He complained that his wife, the 5th respondent, was remaining ex parte in the O.P and had removed the children in illegal custody to some unspecified place.

Notice was ordered to the respondents. Respondents 6, 7 and 8 have entered appearance. An affidavit has been filed by the 7th respondent. The learned Counsel for respondents 6, 7 and 8 submits that they have no clue about the whereabouts of the children. The children are in the custody of their mother, the 5th respondent, it is submitted.

The 5th respondent has today entered appearance. She has come to this Court with both children. A Counsel has entered appearance on her behalf. The learned Counsel submits that there was no wilful disobedience of the interim directions of the Family Court regarding visitorial rights. In the interest of the welfare of the children, the children were shifted from the school which they earlier attended, to a Boarding School at Kundara, Kollam. The children are happily accommodated at the said hostel and they are not under any illegal confinement or detention. The learned Counsel for the 5th respondent submits that the 5th respondent is willing to produce the children before the Family Court on any date to be fixed by this Court. The Family Court may be directed to pass appropriate further orders. The 5th respondent has a case that the petitioner is not really interested in exercising visitorial rights in respect of the children and the present proceedings has been initiated vexatiously by him.

The dispute essentially is one between spouses regarding custody/visitorial rights of their minor children. We take note that the 5th respondent has entered appearance before Court today with the two minor children. We are satisfied that it is not necessary to continue with the proceedings in this writ petition. We are satisfied that the Family Court, Thiruvananthapuram can be directed to issue appropriate further directions regarding interim custody/visitorial rights of the spouses in respect of the children. Both sides agree to that course of action.

In the result,

a) This writ petition is allowed in part.

b) The 5th respondent, who has appeared before Court today with the two minor children, is directed to produce the children before the Family Court, Thiruvananthapuram on Saturday, the 17th July 2010 at 11 a.m.

c) Before the Family Court, the petitioner and the 5th respondent shall be at liberty to make appropriate submissions and the Family Court shall issue appropriate further directions regarding interim custody/visitorial rights of the spouses in respect of the children.

We accept the undertaking of the 5th respondent that the children shall not be taken outside Kerala before 17/7/2010 and without specific directions of the Family Court to that effect.

The learned Counsel for the 5th respondent prays, the learned Counsel for the petitioner accepts and it is directed that custody of the children with the 5th respondent shall not, in any way, be disturbed by the petitioner until further orders are issued by the Family Court.

Call this petition again on 20/7/2010 for report regarding compliance of the above directions.

ORDER

27.05.2010

R. Basant, J.

The petitioner is the father of two minor children aged 11 years and 6 years. Proceedings are pending before the Family Court regarding custody of the children. There have been interim directions which the 5th respondent is bound to comply with. It is the grievance of the petitioner that these directions have not been complied with. It is his further grievance that the 5th respondent has remained ex parte in the proceedings before the Family Court from 30/03/2010. Thereafter, the whereabouts of the children are not known. The Family Court has set the 5th respondent ex parte and is proceeding to dispose of the O.P. The grievance of the petitioner is that the children are about to be taken out of the jurisdiction of this Court. They are being illegally detained and confined to frustrate the decree which may be passed against him.

This writ petition is admitted. Notice given and the learned Government Pleader appears for respondents 1 to 3. Issue emergent notice to respondents 4 to 8. The learned Counsel for the petitioner prays and is accordingly permitted to take out notice to respondents 4 to 8 by special messenger. Call on 01/06/2010.