IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 26TH DAY OF JUNE 2015
OP (FC).No. 280 of 2015 (R)
---------------------------
SANUMOL C C,
Vs
SUNNY P C
The petitioners have filed this O.P.(FC) seeking an order to set
aside Ext.P8 common order of the Family Court, Thiruvalla, dated
22.6.2015 in I.A.Nos.527 of 2015 and 596 of 2015 in O.P.(G&W)
No.1179 of 2010.
2. The marriage between the 1st petitioner and the
respondent was solemnised on 6.1.2001 at St.Catholic Church,
Maloosserry, as per Christian religious rites and rituals. Out of the
said wedlock, two male children were born to them, who are now
aged 14 years and 10 years respectively. The 2nd and 3rd petitioners
are their maternal grandparents. Due to difference of opinion, the
1st petitioner and the respondent are living separately. The 1st
petitioner is working as a Staff Nurse in Saudi Arabia. The
respondent is working as Peon in a Travel Agency at his native
place.
3. The respondent filed O.P.(G&W)No.702 of 2010 before
O.P.(FC)No.280/15 -2-
the Family Court, Kottayam, seeking an order to appoint him as
the guardian of the minor children and for their custody. On the
formation of the Family Court, Thiruvalla, the above original
petition was transferred to that Court and renumbered as O.P.
(G&W) No.1179 of 2010. The said original petition was
compromised between the parties, in terms of the compromise
recorded in I.A.No.526 of 2012. Ext.P2 is the compromise decree
passed by the Family Court on 4.4.2012, in terms of the
compromise so recorded.
4. In terms of Ext.P2, the permanent custody of the two
children till they attain majority was given to the respondent. The
1st petitioner was given liberty to get temporary custody of the
children for a period of 20 days in every year, during the period
when she comes on leave from her workplace abroad. The 2nd
and 3rd petitioners, the maternal grandparents, were given liberty
to visit the children once in a month at the residence of the
respondent. The 1st petitioner was also given liberty to visit the
children at their parental home as and when she likes, after due
notice to the respondent through her parents. Based on Ext.P2
O.P.(FC)No.280/15 -3-
compromise decree, the custody of the children was handed over
to the respondent, on 4.4.2012.
5. On 11.4.2015, the 1st petitioner came on leave from
Saudi Arabia. In terms of Ext.P2 compromise decree, the custody
of the children was handed over to her on 19.4.2015, for a period
of 20 days. On 10.5.2015 the 2nd and 3rd petitioners, the
maternal grandparents, took the children to their paternal home,
in order to handover their custody to the respondent. At that
time the children requested the respondent to allow them to stay
at their maternal home for four 4 more days and accordingly, he
allowed the children to stay in their maternal home for 4 more
days and thereafter, the respondent brought them back to their
paternal home.
6. On 19.5.2015, the 'CHILD LINE', Kottayam submitted
an urgent report before the Child Welfare Committee, Kottayam,
stating that a 'SAVE CALL' was received on 'CHILD HELPLINE
1098' about the pathetic condition of the children of the 1st
petitioner and the respondent, and the need for their emergency
rescue. The Committee issued a 'rescue order' to the Child Line
O.P.(FC)No.280/15 -4-
Co-ordinator and an 'assistance order' to the Sub Inspector of
Police, Gandhinagar. After rescuing the children, a member of the
Child Welfare Committee interacted with them and recorded their
statement. Since the children declined to go with the respondent,
they were accommodated in the Emmanuel Children Home,
Parthumpara, and the 1st petitioner and the respondent were
given notice to appear before the Committee on 20.5.2015. On
that date, the Committee interacted with the children and their
parents. The children expressed their desire to go with the 1st
petitioner. Then the respondent produced copy of Ext.P2
compromise decree in O.P.(G&W)No.1179 of 2010. In such
circumstances, the Child Welfare Committee submitted Ext.P3
report dated 25.5.2015, before the Family Court, Thiruvalla, in
O.P.(G&W)No. 1179 of 2010.
7. The 1st petitioner-mother, along with her parents, filed
I.A.No.527 of 2015 in O.P.(G&W)No.1179 of 2010 before the
Family Court, an application under Section 12 of the Guardians
and Wards Act, 1890, seeking interim custody of the children,
stating that, pursuant to Ext.P2 compromise decree the children
O.P.(FC)No.280/15 -5-
started residing with the respondent from 4.4.2012 at their
paternal home. But life was not happy for them in the custody of
the respondent. The children, who were till then studying in a
very reputed school, were admitted in an ordinary school. The
respondent failed to look after them properly. The respondent,
after the death of his mother, comes home drunk in the dead of
night, leaving the children at home alone. The children were
subjected to abuse and were physically manhandled. The children
are now very afraid of him and they do not want to live with him.
The children revealed the untold miseries faced by them, during
their 20 days stay with the 1st petitioner. They were also
reluctant to go with the respondent. However, on 10.5.2015, the
2nd and 3rd petitioners took the children to their paternal home.
As the children were crying, they took the children back to their
maternal home, for residing there for 4 more days. On
14.5.2015, the respondent came there and took them back to
their paternal home. After reaching Kottayam, the children
contacted the Child Welfare Helpline, which culminated in the
Child Welfare Committee, Kottayam filing Ext.P3 report before
O.P.(FC)No.280/15 -6-
the Family Court, Thiruvalla. The statement given by the children
before the Child Welfare Committee was also produced along with
I.A.No.527 of 2015. Therefore, according to the petitioners, the
atmosphere in the paternal home is not congenial for the welfare
of the children and it will only hamper their growth. In such
circumstances, the petitioners filed I.A.No.528 of 2015 seeking
an order to remove the respondent from the guardianship of the
children and to appoint the 1st petitioner as their guardian and
also to grant the petitioners their custody. It was along with the
aforesaid application, the petitioners filed I.A.No.527 of 2015,
under Section 12 of the Guardians and Wards Act, 1890, seeking
an order to give them interim custody of the children.
8. The respondent-father filed I.A.No.596 of 2015, under
Section 12 of the Guardians and Wards Act, 1890, seeking an
order to take evidence in I.A.Nos.527 of 2015 and 528 of 2015
before making any alterations to the terms of compromise
contained in Ext.P2 compromise decree dated 4.4.2012 and also
seeking an order to give him interim custody of the children till
the aforesaid applications are finally decided. The respondent
O.P.(FC)No.280/15 -7-
has also stated that, he was looking after the children with love
and affection and maintaining them in a proper manner and the
allegations regarding harassment at his hands are false. The
children are pursuing their studies in CMS Higher Secondary
School, Kottayam, which is a famous school in Kottayam town,
and there is no circumstances warranting a change in their
schooling. The respondent has also stated that, the 1st petitioner-
mother is leaving India to join her duty abroad and that the
maternal grandparents are also not intending to look after the
children. Therefore, the best person to look after the children is
the respondent-father.
9. The Family Court considered the rival contentions and
passed Ext.P8 order dated 22.6.2015 by which I.A.No.596 of
2015 was allowed and the interim custody of the children were
given to the respondent-father till the disposal of I.A.No.528 of
2015 filed by the petitioners seeking an order to remove him
from the guardianship of the children and to appoint the 1st
petitioner-mother as their guardian. The 2nd and 3rd petitioners,
the maternal grandparents, who were in the custody of the
O.P.(FC)No.280/15 -8-
children as per the orders of the Family Court were directed to
handover their custody to the respondent-father. I.A.No.527 of
2015 filed by the 1st petitioner-mother along with her parents,
seeking interim custody of the children was dismissed. It is
aggrieved by Ext.P8 order, the petitioners are before this Court in
this O.P.(FC).
10. We heard the arguments of the learned counsel for the
petitioners.
11. The learned counsel for the petitioners would contend
that, when the materials on record indicate that, the children are
not safe in the hands of the respondent-father and that, they are
not getting proper education, the Family Court ought to have
entrusted their interim custody to the petitioners, especially when
the 1st petitioner-mother, who is employed abroad, has the
capacity to provide better life and education to her children. The
learned counsel would contend further that, when the Child
Welfare Committee in Ext.P3 report found that the children were
subjected to physical and mental torture by the respondent-
father, the Family Court ought not to have given their interim
O.P.(FC)No.280/15 -9-
custody to him. The elder son gave Ext.P6 statement before the
Family Court against the respondent-father, which was also
brushed aside without any valid reasons. Moreover, the Family
Court ought not to have passed Ext.P8 order, without considering
the pendency of I.A.No.528 of 2015 filed by the petitioners
seeking an order to remove the respondent-father from the
guardianship of the children and to appoint the 1st petitioner-
mother as their guardian.
12. A reading of Ext.P8 order would make it explicitly clear
that, the only question that has been considered by the Family
Court in the said order is as to whether the interim custody of the
children is to be given to the 1st petitioner-mother or to the
respondent-father till the disposal of I.A.No.528 of 2015 filed by
the petitioners seeking an order to remove the respondent-father
from the guardianship of the children and to appoint the 1st
petitioner-mother as their guardian.
13. At the outset, it is made clear that, we do not propose
to delve deep into the merits of the allegations and counter-
allegations raised before the Family Court, as reflected in Ext.P8
O.P.(FC)No.280/15 -10-
order as well as in the interlocutory applications filed before that
Court, since I.A.No.528 of 2015 filed by the petitioners seeking
an order to remove the respondent-father from the guardianship
of the children and for other consequential relief is pending
consideration before that Court.
14. As we have already noticed, the 1st petitioner-mother
and the respondent-father are at loggerheads with each other
and living separately for quite long. The issue regarding custody
of their minor children is governed by Ext.P2 compromise decree
passed by the Family Court on 4.4.2012 in O.P.(G&W) No.1179
of 2010. In terms of the compromise, the permanent custody of
the children till they attain majority is given to the respondent-
father and the 1st petitioner-mother is entitled to have their
temporary custody for a period of 20 days every year, during the
period when she comes on leave from her workplace abroad. The
2nd and 3rd petitioners, the maternal grandparents are entitled to
visit the children once in every month, at their paternal home.
The 1st petitioner-mother is also given liberty to visit the children,
at their paternal home, as and when she likes, after due notice to
O.P.(FC)No.280/15 -11-
the respondent-father.
15. It is not in dispute that, in terms of Ext.P2 compromise
decree, the custody of the minor children were handed over to
the respondent-father on 4.4.2012 and they were residing in
their paternal home till 19.4.2015, the date on which the 1st
petitioner-mother was given interim custody of the children, and
they were pursuing their studies in CMS Higher Secondary
School, Kottayam. On 11.4.2015, the 1st petitioner-mother came
on leave from Saudi Arabia and in terms of Ext.P2 compromise
decree, the custody of the children were handed over to her on
19.4.2015, for a period of 20 days. According to the 1st
petitioner-mother, the children, during their stay with her,
revealed the untold miseries they faced at the hands of the
respondent-father, at their paternal home. On 10.5.2015, the
children were reluctant to go back to their parental home and
since they were crying, the respondent-father permitted them to
stay in their maternal home for 4 more days and thereafter, he
took them back to their paternal home. While staying in their
parental home, the children made a 'SAVE CALL' to 'CHILD
O.P.(FC)No.280/15 -12-
HELPLINE 1098', stating that they were being harassed, ill-
treated and put to starvation by the respondent-father, which
culminated in the Child Welfare Committee, Kottayam, filing
Ext.P3 report before the Family Court.
16. In Ext.P8 order, the Family Court noticed that, though
the children were in the custody of the respondent-father from
4.4.2012 onwards, prior to 15.5.2015 they never made any
complaint against their father to any of their relatives or
authorities that, they were being ill-treated or harassed by their
father. The elder child aged 14 years was studying in the 8th
standard and the younger child aged 10 years was studying in
the 5th standard in the CMS Higher Secondary School, Kottayam.
The elder son gave a statement before the Child Welfare
Committee, Kottayam that, the respondent-father used to
manhandle him and his brother. The Family Court noticed that, in
the statement recorded by the court, the elder son has stated
that the respondent-father used to manhandle him and his
brother and that, he is not interested in staying with his father.
But, the elder son has categorically stated that, while living with
O.P.(FC)No.280/15 -13-
the respondent-father, he was looking after their entire affairs
properly. The Family Court has also noticed that, the younger
child was very happy with the father and he was even ready to
go along with the father. Therefore, the Family Court in Ext.P8
order concluded that, the children were unduly influenced by the
1st petitioner-mother, while she was having their interim custody,
and it was due to such undue influence the children conveyed
false information to the 'CHILD HELPLINE' on the next day of
leaving the custody of their mother. The finding of the Family
Court that, the children conveyed false information to the 'CHILD
HELPLINE' on the next day of leaving the custody of the
respondent-mother, cannot be termed as a finding which could
not have been arrived at reasonably based on the evidence
already on record. The aforesaid finding of the Family Court, after
interacting with the children and recording the statement of the
elder child, cannot be termed as a finding without any legal
evidence, warranting any interference of this Court in exercise of
the supervisory jurisdiction under Article 227 of the Constitution
of India.
O.P.(FC)No.280/15 -14-
17. The learned counsel for the petitioners would contend
that, when the Child Welfare Committee in Ext.P3 report found
that the children were subjected to physical and mental torture
by the respondent-father, the Family Court ought not to have
given their interim custody to the respondent-father. Further, the
Family Court brushed aside without any valid reasons, Ext.P6
statement given by the elder son before the Court, against the
respondent-father.
18. Before the Family Court, the respondent-father
contended that, he was looking after the children with love and
affection and maintaining them in a proper manner. The children
were pursuing their studies in CMS Higher Secondary School,
Kottayam, which is a famous school in Kottayam town. As borne
out from Ext.P8 order, the definite case of the respondent-father
before the Family Court was that, the complaint made by the
children and the statement given before the Child Welfare
Committee, etc., are part of a drama played by the 1st petitioner-
mother and her former advocate, who is presently a member of
the Child Welfare Committee, Kottayam. As noticed by the Family
O.P.(FC)No.280/15 -15-
Court, Ext.P3 report dated 25.5.2015 of the Child Welfare
Committee would show that, the aforesaid person is a member of
that Committee and that, he has also attested the copy of the
statement alleged to have been made by the elder son to the
Chairperson of that Committee. The Family Court has also
noticed that, the 1st petitioner-mother has not disputed the fact
that, her former advocate is a member of the Child Welfare
Committee, Kottayam. It was in such circumstances, the Family
Court in Ext.P8 order concluded that, it is obvious that the
children were unduly influenced by the 1st petitioner-mother while
they were in her interim custody, by giving whatever things they
wanted, and due to such influence the children contacted the
'CHILD HELPLINE' immediately on the next day of leaving the
custody of their mother and conveyed false information to the
'CHILD HELPLINE' and accordingly they were taken into custody
by the Committee with the help of police. We also notice that, the
finding in Ext.P8 order that, the former advocate of the 1st
petitioner-mother is a member of the Child Welfare Committee,
Kottayam, who has also attested the copy of the statement
O.P.(FC)No.280/15 -16-
alleged to have been made by the elder son to the Chairperson of
that Committee, is neither disputed nor challenged in this O.P.
(FC). Further, the learned counsel for the petitioners has also not
advanced any arguments on the correctness of the said finding in
Ext.P8 order of the Family Court.
19. Sections 29 to 33 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to as 'the
Act') deal with constitution of Child Welfare Committee, the
procedure to be followed by the Committee, the powers of the
Committee, the procedure for production of a 'child in need of
care and protection' before the Committee and also inquiry by
that Committee. Similarly, Rules 10 and 11 of the Kerala Juvenile
Justice (Care and Protection of Children) Rules, 2003 (hereinafter
referred to as 'the Rules') deal with production of such a child
before the Child Welfare Committee, the procedure for production
of child and also the procedure for inquiry.
20. The Child Welfare Committees are constituted under
Section 29 of the Act, for exercising the powers conferred on it
under Section 31 of the Act and for discharging the duties in
O.P.(FC)No.280/15 -17-
relation to a 'child in need of care and protection' as defined in
Clause (d) of Section 2 of the Act. While exercising such powers
and discharging the duties in relation to a 'child in need of care
and protection' the paramount consideration of the Committee
should be the welfare of that child. Bearing in mind the objectives
of the Act, namely, to provide proper care, protection, etc., to the
juveniles, the Committee constituted under Section 29 of the Act
has to act as a true guardian of a 'child in need of care and
protection', while exercising its powers under Section 31 of the
Act and discharging the duties in relation to such a child. It is
pertinent to note that, going by Clause (i) of Sub-section (4) of
Section 29 of the Act, the appointment of any member of the
Child Welfare Committee may be terminated, after holding
inquiry, by the State Government, if he has been found guilty of
misuse of power vested under the Act.
21. Going by Clause (j) of Section 2 of the Act, 'guardian',
in relation to a child, means his natural guardian or any other
person having the actual charge or control over the child and
recognised by the competent authority as a guardian in course of
O.P.(FC)No.280/15 -18-
proceedings before that authority. A child residing with his or her
guardian would fall within the sweep of a 'child in need of care
and protection', in cases covered by Clauses (ii), (iv) and (v) of
Section 2 of the Act. But, the Child Welfare Committee should
deal with such cases with utmost care and caution and the
Committee should not allow itself to be swayed away by the
statement made by a child, without trying to test its veracity,
especially in a case in which his or her parents are at loggerheads
with each other, either on matrimonial issues or for custody of
their minor children.
22. In Biju K.V. v. Neethu Roy (ILR 2015 (2) Kerala
772), a decision relied on by the Family Court in Ext.P8 order, a
Division Bench of this Court in which one among us [AKN(J)] was
a party, has held as follows;
"It is well settled that in a case for custody of a minor
child, the paramount consideration shall be the welfare
of the child. The Supreme Court has in Nil Ratan Kundu
Vs. Abhijit Kundu (2008 (9) SCC 413) dealing with the
principles governing the custody of children, held that a
court while dealing with custody cases, is neither bound
O.P.(FC)No.280/15 -19-
by statutes nor by strict rules of evidence or procedure
nor by precedents. In selecting a proper guardian for a
minor, the paramount consideration should be the
welfare and well being of the child. The Apex Court held
further that, a child is not "property" or "commodity"
and that the issues relating to custody of minors and
tender aged children have to be handled with love,
affection, sentiments and by applying human touch to
the problem."
23. In Mausami Moitra Ganguli v. Jayant Ganguli
(2008 (7) SCC 673), a decision relied on by this Court in Biju's
case (supra), the Apex Court has held that, it is the welfare and
interest of the child and not the rights of the parents which is the
determining factor for deciding the question of custody.
24. In Nil Ratan Kundu Vs. Abhijit Kundu (2008 (9)
SCC 413), another decision relied on by this Court in Biju's case
(supra), the Apex Court has held that, a Court while dealing with
custody cases, is neither bound by statutes nor by strict rules of
evidence or procedure nor by precedents. In selecting proper
guardian of a minor, the paramount consideration should be the
welfare and well-being of the child. In selecting a guardian, the
O.P.(FC)No.280/15 -20-
Court is exercising parens patriae jurisdiction and is expected,
nay bound, to give due weight to a child's ordinary comfort,
contentment, health, education, intellectual development and
favourable surroundings. But over and above physical comforts,
moral and ethical values cannot be ignored. They are equally, or
even more important, essential and indispensable considerations.
25. Therefore, the paramount consideration of the Family
Court exercising parens patriae jurisdiction while deciding the
question of custody is the welfare and well-being of the minor
children and not the rights of their parents who are at
loggerheads with each other. While dealing with such matters,
the Family Court is not expected to blindly accept the report of
the Child Welfare Committee or the statement of the children
recorded by the Committee. Therefore, when the Family Court,
after interacting with the children and recording their statement,
came to the conclusion that, Ext.P3 report of the Child Welfare
Committee and also Ext.P6 statement given by the elder son
before court cannot be acted upon, the petitioners cannot
contend that, in view of the finding in Ext.P3 report of the Child
O.P.(FC)No.280/15 -21-
Welfare Committee that the children were subjected to physical
and mental torture by the respondent-father, the Family Court
ought not to have given their interim custody to the respondent-
father.
26. The learned counsel for the petitioners would contend
further that, the Family Court ought not to have passed Ext.P8
order, without considering the pendency of I.A.No.528 of 2015
filed by the petitioners seeking an order to remove the
respondent-father from the guardianship of the children and
other consequential relief. The learned counsel would also submit
that, if this Court is not inclined to interfere with Ext.P8 order,
the Family Court may be directed to dispose of I.A.No.528 of
2015 filed by the petitioners, untrammeled by any of the
observations contained in Ext.P8 order.
27. In Rosy Jacob v. Jacob A. Chakramakkal (1973
(1) SCC 840) the Apex Court has held that, all orders relating to
the custody of the minor wards from their very nature must be
considered to be temporary orders made in the existing
circumstances. With the changed conditions and circumstances,
O.P.(FC)No.280/15 -22-
including the passage of time, the Court is entitled to vary such
orders if such variation is considered to be in the interest of the
welfare of the wards. Orders relating to custody of wards even
when based on consent are liable to be varied by the Court, if the
welfare of the wards demands variation. The three-Judge Bench
of the Apex Court, in a rather curt language observed that, 'the
children are not mere chattels; nor are they mere play-things for
their parents'.
28. Later, in Jai Prakash Khadria v. Shyam Sunder
Agarwalla (2000 (6) SCC 598) the Apex Court has reiterated
that, the orders relating to custody of children are by the very
nature not final but are interlocutory in nature and subject to
modification at any future time upon proof of change of
circumstances requiring change of custody but such change in
custody must be proved to be in the paramount interest of the
child.
29. In the case on hand, in terms of Ext.P2 compromise
decree dated 4.4.2012 in O.P.(G&W) No.1179 of 2010 the
permanent custody of the two children, till they attain majority,
O.P.(FC)No.280/15 -23-
was granted to the respondent-father. The petitioners have filed
I.A.No.528 of 2015, seeking an order to remove the respondent-
father from their guardianship and to appoint the 1st petitioner-
mother as their guardian and for other consequential relief. The
aforesaid application was filed on the ground that, the
atmosphere in the paternal home is not congenial for the welfare
of the children and it will only hamper their growth. In order to
succeed in an application seeking an order to remove the
respondent-father from the guardianship of the children, the 1st
petitioner-mother has to establish a change in circumstances by
passage of time and that, the variation sought for would be in the
best interest of the welfare of the minor children. This is because,
the Family Court exercising parens patriae jurisdiction for
deciding the question of custody of minor children, is not
expected to modify or vary an order relating to custody unless it
is satisfied that the welfare of the children demands such
variation.
30. Therefore, in an application seeking an order to
modify or vary an order relating to custody, the welfare and well-
O.P.(FC)No.280/15 -24-
being of the minor children should be the paramount
consideration of the Family Court, and not the rights of their
parents who are at loggerheads with each other. The Family
Court exercising parens patriae jurisdiction has to strike a just
and proper balance between the requirements of welfare of the
minor children and the rights of their respective parents over
them, keeping in mind the observation made by a three-Judge
Bench of the Apex Court in Rosy Jacob's case (supra), in a rather
curt language that, 'the children are not mere chattels; nor are
they mere play-things for their parents'.
31. As we have already noticed, a reading of Ext.P8 order
would make it explicitly clear that, the only question that has
been considered by the Family Court in that order is as to
whether the interim custody of the children is to be given to the
1st petitioner-mother or to the respondent-father, till the disposal
of I.A.No.528 of 2015 filed by the petitioners seeking an order to
remove the respondent-father from their guardianship. The
Family Court brushed aside Ext.P3 report of the Child Welfare
Committee and also Ext.P6 statement given by the elder son in
Court, on a specific finding that, the children were unduly
influenced by the 1st petitioner-mother while they were in her
interim custody, and due to such influence the children contacted
the 'CHILD HELPLINE' immediately on the next day of leaving the
custody of their mother and conveyed false information to the
'CHILD HELPLINE' and accordingly they were taken into custody
by the Committee with the help of police. As we have already
noticed, the finding in Ext.P8 order that, the former advocate of
the 1st petitioner-mother is a member of the Child Welfare
Committee, Kottayam, who has also attested the copy of the
statement alleged to have been made by the elder son to the
Chairperson of that Committee, is neither disputed nor
challenged in this O.P.(FC). Further, the learned counsel for the
petitioners has also not advanced any arguments on the
correctness of the aforesaid finding of the Family Court. In such
circumstances, the petitioners are not entitled for a disposal of
I.A.No.528 of 2015 by the Family Court, untrammeled by the
above observation made by the Court in Ext.P8 order, which were
made, with particular reference to Ext.P3 report of the Child
Welfare Committee and Ext.P6 statement of the elder son. But,
it would be open to the 1st petitioner-mother to establish before
the Family Court, independent of Ext.P3 report of the Child
Welfare Committee and Ext.P6 statement given by the elder son,
that the atmosphere in the parental home of the children is not
congenial for their welfare or well-being.
32. The Family Court granted interim custody of the
children to the respondent-father, till the disposal of I.A.No.528
of 2015, taking note of the fact that the children are pursuing
their studies in CMS Higher Secondary School, Kottayam, and
any shifting of children after commencement of the academic
year to their maternal home at Thiruvalla will affect their
education. The Family Court has also noticed that, the 1st
petitioner-mother had already returned to her workplace abroad
and will come on leave only after one year. The above findings in
Ext.P8 order are only preliminary findings made by the Family
Court, for the limited purpose of granting interim custody of the
children to the respondent-father, till the disposal of I.A.No.
528 of 2015 filed by the petitioners. The petitioners have
filed the said application, seeking an order to remove the
respondent-father from the guardianship of the children and to
appoint the 1st petitioner-mother as their guardian on the ground
that, the atmosphere in the paternal home is not congenial for
the welfare of the children and it will only hamper their growth.
In order to succeed in that application, the 1st petitioner-mother
has to establish before the Family Court, independent of Ext.P3
report of the Child Welfare Committee and Ext.P6 statement
given by the elder son before Court, that such variation would be
in the best interest of the welfare of the children.
For these reasons, we find absolutely no grounds to
interfere with Ext.P8 order passed by the Family Court,
Thiruvalla. In the result, this O.P.(FC) fails and the same is
dismissed.
Sd/-
C.K.ABDUL REHIM, JUDGE
Sd/-
ANIL K.NARENDRAN, JUDGE
dsn
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