LIJO THOMAS Vs. BEENA CHARLEY

JUDGEMENT

(1.) The petitioner herein is the petitioner in I.A.No.455/2017 in O.P.No.959/2013 and this original petition has been filed challenging Ext.P6 order dated 12.04.2017 passed by the Family Court, Attingal. The petitioner and the first respondent are divorced husband and wife. The dispute involved in the aforesaid I.A concerns to the custody of the minor child by name Libin Liju. After the dissolution of marriage, the petitioner filed O.P.(G&W) No.959/2013 seeking permanent custody of the minor child Libin Liju under the provisions of Guardian and Wards Act. The dispute between the parties in respect of the custody of the minor child has been settled and filed a compromise agreement. A decree has been passed by the family court in accordance with the compromise agreement. According to the petitioner, the respondent has wilfully violated the terms of the compromise by denying the opportunity of the petitioner, to get custody of the child, in violation of the terms of the compromise agreement. As per the terms of compromise, the permanent custody of the child is given to the respondent, but interim custody was given to the petitioner as and when required. As per clause (ii) of the compromise agreement, the petitioner was given interim custody of the child from 4.30 p.m. on every 2nd Friday till 9.30 a.m. on ensuing Monday. So also he was given interim custody in every vacations on the application to be filed before the family court and the order to be passed by the family court on that application. When the first respondent violated the terms of the compromise agreement, the petitioner has filed E.P.No.19/2014, which was dismissed by the family court on a finding that the compromise decree is not an executable one. During the pendency of E.P.No.19/2014, the petitioner filed a petition seeking interim custody of the child during the pendency of the execution petition and the same was denied by the family court. Aggrieved by the denial of interim custody, the petitioner preferred O.P.(FC) No.338/2014 before this Court and this Court passed an interim order granting interim custody of the child to the petitioner on the 3rd Saturday of every month between 10.30 a.m. to 4.30 p.m. till the disposal of the E.P. Finally the family court dismissed the E.P. on a finding that the decree is not a workable one in view of clause (vi) of the terms of the compromise agreement. Subsequently, considering the observations made by the family court in the order dismissing E.P.No.19/2014; the petitioner preferred Ex.P3 original petition before this Court. This Court also dismissed Ext.P3 original petition with a direction to the parties to abide by the terms of Ext.P3. Further the petitioner preferred an I.A.No.455/2017 before the Family Court, Attingal, seeking to review Ext.P1 decree passed in O.P.No.959/2013. According to the averments in the I.A., the terms of Ext.P1 has become unworkable due to the violation of the same by the parties. Therefore, in view of clause (vi) of Ext.P1, O.P.No.959/2013 is liable to be reopened and disposed of on merits after taking evidence.

(2.) The first respondent resisted the said I.A. on a finding that everything in respect of the custody of the child has been concluded by this Court in O.P.(FC) No.338/2014 and Ext.P3 judgment in O.P. (FC) No.662/2016. Therefore, there is no scope for re-opening of Ext.P1 decree. After considering the objection raised by the first respondent herein, the family court passed Ext.P6 order dismissing I.A.No.455/2017, which is under challenge in this original petition.

(3.) Heard the learned counsel for the petitioner and the learned counsel for the respondents.