Vinothakumar Nair vs Rekha

K.T. Sankaran, J.—O.P. (G&W) No. 55 of 2000, on the file of the Family Court, Thiruvananthapuram, was filed by the appellant against the respondent for custody of the child, namely, Lekshmi. The Family Court held that the custody of the child shall be with the mother. The appellant/father was provided with visitation rights. The order passed by the Family Court was challenged by the respondent herein in Mat. Appeal No. 51 of 2004. A Division Bench of this Court disposed of Mat. Appeal No. 51 of 2004 by the judgment dated 30.8.2006, along with two other Matrimonial Appeals between the parties. There was a consensus between the parties and Mat. Appeal No. 51 of 2004 and connected Matrimonial Appeals were disposed of accordingly. The operative portion of the judgment in Mat. Appeal No. 51 of 2004 reads thus:

In so far as the custody of the minor is concerned, the directions issued by the Family Court shall continue to be in operation. However, as regards the visitorial rights on second Saturday of every month, the following modification is made as agreed by the parties. The father will collect the child from the school after the class hours in alternate week ends and put back the child before the commencement of the classes on the ensuing Monday. This arrangement is made taking into account the convenience of both the parties. On the reopening of the school after the Onam holidays of 2006, the child will be taken by the father of the child in the end of the week commencing from 11.9.2006 and thereafter the father will be free to take the child in the alternate week ends. It is agreed that the child can be taken from the school and be returned to the school either by the father or by the paternal grand-mother of the child.

The appellant filed E.P. No. 64 of 2011 in O.P.(G&W) No. 55 of 2000, to execute the order passed by the Family Court, which was modified by this Court in Mat. Appeal No. 51 of 2004. The executing court, namely, the Family Court, Thiruvananthapuram, passed an order dated 2.4.2012, which is under challenge in this Matrimonial Appeal.

The executing court virtually modified the judgment and decree passed by this Court in Mat. Appeal No. 51 of 2004. It would appear that the child was produced before the Family Court and the parties were heard. It is recorded in the order thus:

After hearing the version of the child the Decree holder submits that he is not giving up his right to take custody of the child and he will meet and interact with child also at the premise of the court. The submission of the Decree Holder recorded. The Judgment Debtor is directed to produce the child on all 2nd Saturdays between 10 am & 11 am and handed custody to the father for one hour. The Decree Holder allowed to meet and interact with the child at the above one hour. He is not permitted take away the child from the premises of this court on such occasion. E.P. disposed of as above.

No application was filed on the original side to modify the order Mat. Appeal No. 339 of 2012 A passed by the Family Court. No application was filed before the High Court as well. When the appellant filed E.P. No. 64 of 2011, in that Execution Petition, the Family Court modified the order passed by this Court in Mat. Appeal No. 51 of 2004.

Learned counsel appearing for the respondent submitted that the appellant agreed before the executing court that he need not get custody of the child and that was the reason why the executing court passed the impugned order. It is also submitted that the appellant filed O.P.(G&W) No. 56 of 2012 before the Family Court, Thiruvananthapuram for custody of the child and that petition was filed on the ground that the order dated 2.4.2012 was passed by the executing court, evidently on the consensus between the parties. On a reading of the order passed by the executing court, it is not clear whether the appellant agreed to give up his right. On the other hand, a fair reading of the order discloses that the appellant was not prepared to give up his rights, if any. In these circumstances, we are of the view that the executing court was not justified in passing the order impugned. The order passed by the executing court is, therefore, set aside. The executing court shall consider the matter afresh and pass appropriate orders.

The Matrimonial Appeal is allowed as above.