SANJAY V. Vs. BHAVANA S.

JUDGEMENT

(1.) The petitioner in O.P.(G&W) No. 192 of 2018 on the files of the Family Court, Thiruvananthapuram is approaching this court by invoking powers vested under Article 227 of the Constitution of India, challenging Ext.P6 order passed by that court in I.A. No. 1311/2018, dated 19th May, 2018.

(2.) The petitioner and the respondent are husband and wife. They are living separated due to matrimonial disharmony. The issue agitated before the court below in O.P.(G&W) No. 192 of 2018 is with respect to custody of two minor children of the parties, namely Nidhi. S. Nair aged 14 years and Arjun S. Nair aged 10 years. The petitioner sought relief in the original petition to the extent of declaring him as the legal guardian of the said minors and for granting permanent custody of those minors to him. Along with the original petition the petitioner had filed I.A. No. 237/2018 seeking for interim custody of the minor wards, pending disposal of the original petition. On 02.04.2018, when the matter came up for consideration before the Family Court, the respondent herein failed to appear. Hence the Family Court set her ex-parte in that application and she was directed to produce the wards on 13.04.2018. Subsequently, the petitioner filed I.A. No. 1311/2018 seeking for a direction to the respondent to produce the minor wards before the court and to grant interim custody of them to the petitioner, for a period of two weeks during mid-summer vacation. The Family Court on considering the said application, which was opposed by the respondent herein, passed Ext.P6 order allowing the petitioner to have custody of the children from 24.05.2018 at 10.30 a.m. till 5.30 p.m. on 28.05.2018. The Family Court imposed a condition that, the interim custody need be given only if the wards are willing to go with the petitioner. It is ordered that, if the wards are not willing to go with the petitioner, the petitioner can file a memo before the Family Court expressing their unwillingness. It was directed that the children shall be handed over custody from the court premises, after making necessary entries in the register maintained for the said purpose.

(3.) The petitioner herein is assailing the above said order on the premise that, the Family Court went highly erred in incorporating the condition that the order need to be complied with only if the children are willing to go with the petitioner. It is contended that, the children are of young age and there may be reluctance for them to go with the father, because they might have been tutored by the mother or because the mother might have brain washed them with hatred feeling against the petitioner. It is contended that it was not appropriate on the part of the Family Court to deny the interim custody, based on willingness of the minor children.