TINA KALAYIL & ORS. Vs. HIROSH JOSEPH

JUDGEMENT

(1.) The minor child by name Jake Joseph Hirosh is now aged six years and the dispute relating to his custody primarily between his father and mother has been engaging the attention of this Court more than once. Mat. Appeal No.262/2017 filed by the father against the judgment of the Family Court in OP(G & W) No.881/2015 was disposed of by judgment dated 21.8.2017. Its operative part reads thus:

(2.) The Family Court in implementation of the judgment in Mat. Appeal No.262/2017 by order dated 4.10.2017 in I.A.No.1588/2017 filed by the father directed the parents of the mother to hand over the child on 7.10.2017. This Court by judgment dated 14.2018 in OP(FC) .No.701/2017 filed by the parents of the mother refused to interfere with the directions of the Family Court. It appears that the mother returned from Germany on 19.12017 deciding not to go abroad again and filed I.A.No.325/2018 in OP(G & W) No.881/2015 on the file of the Family Court. It should be stated that a similar application as I.A.No.621/2018 was filed by the wife and her parents in Mat. Appeal No.262/2017 already disposed of. The said application was dismissed by order dated 14.2018 inter alia observing as follows:

(3.) It may at once be noticed that the object of I.A.No.325/2018 is not to modify the judgment in Mat. Appeal No.262/2017 but to apprise the Family Court of the fact that the mother has come down to India permanently. It is conceded by either parties that the mother has surrendered her passport to the Family Court in March, 2018 thus disabling her to travel abroad on her whims and fancies. Let not the passport be released to the mother without notice to the father in which case he is entitled to custody as per the judgment in Mat. Appeal No.262/2017 which has become final. But the mother is otherwise entitled to have custody of the child 'whenever she is in India' as per the judgment in Mat. Appeal No.262/2017 about which there is no doubt. But the Family Court has by the impugned order dated 16.2018 in I.A.No.325/2018 rejected the application holding that the father is entitled to have custody. We are afraid that the Family Court has not correctly interpreted Clause (iii) of the operative part of the judgment in Mat. Appeal No.262/2017 as regards the entitlement of the mother. The order in I.A.No.621/2018 in Mat. Appeal No.262/2017 did not forbid the parties to move the Family Court itself to point out the change in the circumstances. We should not loose sight of the fact that Jake Joseph Hirosh is aged only six years who needs maternal care which is now available after his mother has come back from Germany for good.