KAVITHA K S Vs. MANEESH P M

JUDGEMENT

(1.) Since the parties in both these cases are same and the matter relates to custody of their minor child named Master. Omkar, aged 7 years and 9 months at present, we have considered these cases together and disposed of them through this common judgment.

(2.) Admittedly, the parties are living separated through dissolution of the marriage. It is also evident that the wife (mother of the minor child) got remarried. The fight between the parties with respect to custody of the child started as early as in the year 2014, when the father filed O.P.No.702/2014 before the Family Court, Ernakulam. During pendency of that original petition, a compromise was arrived between the parties on 27.12014. As per the said compromise, it was agreed upon that, the father will be given custody of the child after the end of the academic year concerned, on 01.05.2016. Visitation right was provided to the mother. It was agreed upon that the child will be handed over custody to the mother on the 2nd and 4th Saturdays and Sundays of every month and also for half the period during all the vacations. Till 01/05/2016, it was agreed upon that, the father shall be given custody of the minor on the 2 nd and 4th week of every month on Saturdays and Sundays. It is submitted by both sides that, O.P.No.702/2014 was disposed of by the Family Court based on the above said compromise.

(3.) Even before the date stipulated for handing over the permanent custody of the child to the father (01/05/2016) the mother filed another case before the Family Court as G.O.P No.693/2016 seeking modification of the arrangement, based on an allegation that the father has violated the terms of the compromise. Evidently, the Family Court had passed different interim orders on various occasions, one after another, on rival interim petitions filed by the parties, granting interim custody of the child. There is an order passed in I.A.No.1190/2016 filed by the mother, on 25/04/2016, handing over custody of the child to the mother from 25/04/2016 till 30/04/2016. There is yet another order passed in I.A.No.1437/2016 filed by the father, on 04/05/2016, granting custody of the minor child to the father from 04/05/2016 till 30/05/2016. We take note of the fact based on the compromise it was agreed that permanent custody will be entrusted with the father, with visitation rights provided to the mother. That arrangement has to continue until altered permanently. While so, the mother again filed I.A.No.2246/2018 alleging that on 24/02/2018 when she got custody of the child, the child was seen very weak and on medical examinations it was revealed that he is having nutritional anemia, because of malnutrition of protein energy as well as dental cavity due to poor hygiene. The mother alleged that there was yet another compromise arrived between the parties agreeing to hand over custody of the child to her on 31/05/2018, but the respondent had failed to comply with the said compromise. The above application was resisted by the father through a detailed counter affidavit filed. I.A.No.2246/2018 was disposed of by the Family Court through the order dated 11/06/2018. The court below observed that, even though the mother had filed various interim applications, at no point of time the permanent custody was given to her and that she has not challenged any such orders passed in different interim applications. It was found that, despite many petitions filed, she was only given custody for limited periods. The court below found that, the mother is now living with her second husband, with whom she went away after leaving the child with the father, when the child was about 3 to 3' years old. Therefore the court, prima facie found that, the affinity and affection now shown by the mother, cannot be accepted. Based on the earlier compromise, it was found that the child should be with the father himself. The court below noticed that the child is admitted in a reputed school by the father and the mother was given visitation rights. The court below found that the father is capable of maintaining the child in the best interest of the child.