HIROSH JOSEPH Vs. TINA KALAYIL

JUDGEMENT

(1.) This appeal is filed by the petitioner in OP (G&W) No. 881/2015 of the Family Court, Kottayam at Ettumanoor challenging judgment dated 18/2/2017 along with an order in IA No.1540/2016 in the same Original Petition. 2. The short facts which arise in the appeal are as under:- The appellant married the 1st respondent on 22/7/2007 and they had a minor child Jake Joseph Hirosh, born on 26/9/2012. The couple separated in January, 2014 and their marriage was dissolved on 31/1/2015 as per orders passed in OP No.1454/2014. At the time of divorce by mutual consent, there was an understanding that the minor child, who was only aged 2 years, shall remain with the first respondent. 3. The O.P. was filed by the appellant inter alia contending that the 1st respondent did not take any steps to care and attend the minor child and the child was not getting her personal attention. According to him, she was planning to leave India on 28/8/2015 for doing her MBA course, leaving the child with additional respondents 2 and 3, who are none other than her parents. He contended that the 2nd respondent is a drunkard and a smoker and if the child is left in their custody, it would affect the child's personality and mental condition. He is a Computer Engineer working at Bangalore and he is having sufficient income to take care of the welfare of the child. He is having his own apartment at Bangalore and his parents are residing with him. He could arrange all facilities for getting admission to a nearby school and can give the best education that is possible. He contended that the first respondent was leaving to Germany in a student visa and her departure would leave the child unattended, which would adversely affect the welfare and wellbeing of the child. 4. The respondents filed objection denying the contentions urged. It is stated that, after divorce, petitioner/appellant never tried to see the child or attended to his welfare or maintained him. The appellant is residing at Bangalore and his parents are at Kottappuram, Trichur. They also allege that he is a drunkard and drug addict. He even attempted to commit suicide by cutting his vein. It is further contended that the respondent had agreed for a divorce on the undertaking given by the appellant that he would give permanent custody of the minor to the respondent/mother. The child is now being taken care of by the additional respondents 2 and 3. The 1st respondent further contended that she had gone to Germany for higher studies and she had applied for visa for the minor child as well. The 2nd respondent also denied the fact that he was a drunkard. According to him, he had stopped smoking 3 years back. The first respondent therefore denied the claim of the appellant and according to her, removing the child from the custody of the respondents will adversely affect the welfare of the child. 5. During the pendency of the petition, the respondents filed IA No.1540/2016 for a direction to the appellant to give consent letter to the first respondent for visa and to take the child to Germany. In the said application, she had stated that, for obtaining visa for the child, consent of the father is required. The appellant filed objection stating that the intention of the first respondent is to take the child along with her in order to remove the child from the jurisdiction of the Court and thereby defeat his right to have custody of the child. 6. Before the Family Court, the appellant was examined as PW1 and he relied upon Exts.A1 to A6. First respondent was examined as RW1 and she placed reliance on Exts.B1 to B5. The Family Court after considering the factual and legal aspects involved in the matter, dismissed the Original Petition and allowed IA No.1540/2016. The first respondent/mother was permitted to take the minor child to Germany. However, it was observed that she has to bring the child to Kerala twice in a year, i.e., every six months and hand over the child to the father for a minimum period of 10 days and she was also directed to deposit Rs.5 lakhs and produce bank guarantee for Rs.5 lakhs each by any of her two relatives who are residing in Kerala before taking the child to Germany. The appellant was also directed to give consent letter to petitioner/mother for visa and to take the child to Germany and in the event of his failure to do so, she is allowed to get permission from the Court to apply for visa. 7. Learned counsel for the appellant while impugning the aforesaid judgment contended that the intention of the first respondent was to take the child away from the jurisdiction of the Court and in the event of the child being taken to Germany, there is no possibility of the appellant to visit the child at any point of time. The conditions imposed by the Family Court by itself will not be enough to ensure that the child will be brought back from Germany. The first respondent is going to Germany for studies and she is alone. There is no one else to look after the minor child. Permitting the minor child to remain with the custody of grand parents is also not conducive especially when the 2nd respondent is a habitual smoker and drunkard. When the father is very much in India, the custody is to remain with him and the contrary allegations against him are absolutely baseless. Learned counsel also placed reliance upon the following judgments.