Marriage can be dissolved based on the mutual consent of the parties and mother is appointed as a natural guardian and permanent custodian of the children : High Court of Kerala
Marriage can be dissolved based on the mutual consent of the parties. In regard to the custody of the children, the petitioner-mother is appointed as a natural guardian and permanent custodian of the children namely, Dakshina and Dekshith. It is agreed by both parties that the children will be taken to Kuwait by the petitioner-mother, the natural guardian and permanent custodian was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE in the case of DIVYA RAJAN vs BINEESH P.B. (0P /FCI NO. 492 0F: 2021) on 17th March, 2022. Brief facts of the case are that The petitioner-mother and the 1st respondent-father are nor residents of India and currently employed in Kuwait. The marital disputes between them are pending before the family Court, chavara and the Famiily Court, Ernakulan. The parties resolved their dispute and filed a joint petition for divorce invoking Section 1 3 8 of the Hinds Marriage Act, 1955. The parties also have entered into an agreement regarding custody of the children born in their wedlock There are disputes regarding the maintenance. In regard to the quantum of maintenance payable to the children by the 1st respondent-father, the parties have agreed for resolution of the disputes. They are firm in their decision to dissolve their marriage. And the statutory cooling off period can be waived ` since the parties are living separately for the last more than several years and the petitioner-wife filed the divorce petition in the year 2019. Court is of the view that the marriage can be dissolved based on the mutual consent of the parties. In regard to the custody of the children, the petitioner-mother is appointed as a natural guardian and permanent custodian of the children namely, Dakshina and Dekshith. It is agreed before this Court by both parties that the children will be taken to kuwait by the petitioner-mother, the natural guardian and permanent custodian. The 1st respondent-father will have the custody of the children on every Friday between 10 am and 5 pm. If the children are taken to Kuwait, the respondent-father shall pay a sum of Rs.5000/-(Rupees Fife Thousand only) each to the children as maintenance. However, if the children remains in India, the lot respondent-father is bound to take care of the children.
IN THE HIGH COURT 0F KERALA AT ERl\IAKULAM THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY "E 17TH DAY 01= MARCH 2022 26TH PHALGUNA 1943 AeAINST THE ORDER ]uDGMENT IN Op Gw 206® 2®2® OF I:AMILy 0P FCI NO. 492 0F: 2021 COURT ERNAKU LAM DIVYA RAJAN AGED 35 YEARS W 0. BINEESH P.B. THUMPA VILAYIL HOUSE AKDUVINAL P.0. VALLIKUNNAM MURI VALLIKUNNAM VILLAGE ALAPPUZHA DISTRICT NOW RESIDING AT AMBADIYIL HOUSE PAVUMPA P.0. KARUNAGAPALLY TALUK KOLLAM DISTRICT PIN 690 574 BY ADVS P . HARI DAS P . C . SHIJIN RISHIKESH HARIDAS BIJU HARIHARAN BINEESH P.B. AGED 39 YEARS S 0 BABY RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 307 BABY AGED 66 YEARS FATHERS NAME NOT KNOWN T0 THE PETITIONER RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 NIRMALA AGED 60 YEARS W 0. BABY RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 307 BINU AGED 37 YEARS S 0. BABU RESIDING AT PISHARIKATTIL HOUSE. MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 307 BABY DAKSHINA AGED 6 YEARS D 0. BINEESH P.B AND DIWA RAJAN RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM OP ffi NO. 492 0F 2oZI VILLAGE P00THOTTA P O. ERNAKULAM DISTRICT PIN 682 307. DEKSHITH AGED 4 YEARS S 0. BINEESH P.B. AND DIVYA RAJAN RESIDING AT PISHARIKATTIL HOUSE MANAKUNNAM VILLAGE P00THOTTA P.0. ERNAKULAM DISTRICT PIN 682 307. . ADDL. THE COMMISSIONER 0F POLICE KOCHI OFFICE 0F THE COMMISSIONER 0F POLICE ABDUL KALAM MARG MARINE DRIVE ERNAKULAM PIN 682011 ADDL. R7 IMPLEADED AS PER THE ORDER DATED 22 12 21 IN IA 1 2021 IN 0P(FC) 492 2021 ADDL. THE STATION HOUSE OFFICER UDAYAMPER00R POLICE STATION SH 15 UDAYAMPER00R KANDANAD ERNAKULAM PIN 682307 ADDL. R8 IMPLEADED AS PER THE ORDER DATED 22 12 21 IN IA 1 2021 IN 0P(FC) 492 2021 ADDL R9. THE REGIONAL PASSPORT OFFICER REGIONAL PASSPORT OFFICER TRIVANDRUM REGIONAL PASSPORT OFFICE SNSM BUILDING 3 4TH FLOOR KAITHAMUKKU PETTA RD. THIRUVANANTHAPURAM KERALA 695024 ADDL. R9 IMPLEADED AS PER THE ORDER DATED 22 12 21 IN IA 4 2021 IN 0P(FC) 492 2021 THE AUTHORIZED OFFICER PASSPORT SEVA KENDRAN KOLLAM PASSPORT SEVA KENDRAM KOLLAM 74 BUILDING # MC VIII 1578 715 ASN TRUST COMPLEX NEAR KOLLAM MUNICIPAL CORPORATION OFFICE VELLAPPALLY NAGAR KOLLAM KERALA ADDL. R10 IMPLEADED AS PER THE ORDER DATED 22 12 21 IN IA 4 2021 IN 0P(FC) 492 2021 BY ADVS T.U SUJITH KUMAR SRI.SUVIN R.MENON CGC THIS 0P HAVING BEEN FINALLY HEARD 0N 17.03.2022 THE COURT 0N THE SAME DAY DELIVERED THE FOLLOWING OP qp NO. 492 0F 2021 A. Arfulhamed Musfaque. I This original petition was filed cliallenging art order relating to custody. The petitioner mother and the lst respondent father are nor residents of India and currently employed in Kuwait. The marital diaputes between them are pending before the family Court chavara and the Falnily Court Ernakulan. The parfes resolved their disprfes and filed a joint petition for divorce involdrig Section 1 3 8 of the Hinds Marriage Act 1955. The parties also have entered into ari agreement regarding custody of the children born in their wedlock There are disputes regarding the mainteriarice. In regard to the quariftm of maintenance payable to the children I y the lst respondent father the parties have agreed for resolution of the 2. The petitioner appeared though online. She has been identified by the learried coimsel appearing for her. The lst respondent father is present before this Court. We interacted OP qp NO. 492 0F 20Z1 with both parties. They are firm in their decision to dissolve their marriage. The divorce petitions filed by the petitioner before the Family Cotut Chavara and by the lst respondent father before the Family Court Ernakulam are pending. We are of the view that the statutory cooling off period can be waived since the parties are living separately for the last more than several years and the petitioner wife filed the divorce petition in the year 2019 3. We are also of the view that the marriage can be dissolved based on the mutual consent of the parties. In regard to the custody of the children the petitioner mother is appointed as a natural guardiari and permanent custodian of the children namely Dakshina and Dekshith. It is agreed before this Court by both parties that the children will be taken to kuwait by the petitioner mother the natural guardian and permarient custodian. The lst respondent father will have the custody of the children on every Friday between 10 am and 5 pin. He is also permitted to contact the children whenever he wishes through Op qp NO. 492 Or 2Ozi video platform or over phone 4. The children are now at the parental house of the lst respondent. If the children are taken to Kuwait the lst respondent father shall pay a sum of Rs.5000 each to the children as maintenance. However if the children remains in India the lot respondent father is bourid to take care of the children. We record the terms arid conditions agreed by the parties in the 1 3 8 application and that will form part of the judgment. In the light of settlement above we dispose of this original petition with the following orders I. We direct Family Court Chavara to record the dissolution of marriage betveen the petitioner and the lst respondent by mutual consent without insisting further appearance of the parties in O.PNo.5019 within a period of two weeks 11. O.PNo.20620 before the Family court Emakulam shall be disposed of recording the settlement of the parties before this Court in regard to custody of the children OP ffl NO. 49z or 2021 Ill. We also direct the Family Court Emakulam to close O.PNo.16021 in the light of settlement arrived at between the parties before this Court IV. The petitioner is permitted to process the VISA as a sole guardian of the children and the petitioner alone will be responsible for taking the children to Kuwait V. The entire records including school records Aadhaar cards etc. shall be handed over by the respondents to the petitioner mother at the time in which the children are taken to OP ffl NO. 492 or 2ozi PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 APPENDIX 0F 0P NO.2®60 2020 BEFORE THE FAMILY COURT ERNAKULAM ORIGINALLY FILED BEFORE THE FAMILY COURT TRUE COPY 0F THE I.A.NO.4519 0F 2021 IN 0 P(G&W) NO.2060 2020 0F FAMILY COURT ERNAKULAM DATED 5.10.2021 TRUE COPY 0F TRANSCRIBED COPY 0F THE ORDER IN IA NO 4518 2021 IN 0.P.(G&W) NO.2060 2020 0F FAMILY COURT ERNAKULAM DATED 6.10.2021 TRUE COPY 0F THE POWER 0F ATTORNEY DATED 21. 06 2019 uwlul lJir . Z poe+ Gy`: i>.cb3.2c>T2_2 \n louzf+.j^JO. a t> `o3 . fo2 2 RE THE HONORABLE HIGH COURT OF KERALA AT I.A.No. j of 2022 o.p.(F.c.) Nor.¥92of 2o21 A Divya Rajan & Other : Applicants Petitioner 1st responclenl Bineesh.P.B & others : Respondents Re`spondent 2 9 APPLICATH®N FILEH) UNDER SE}CTION 13 a OF THB RIHNDU MARREAGE ACT 1955 btl Wi)`j Yto+\\b| uJvul • c`i . ` (ul3 pchiflancfdlrJ 4!pendn BEFORE THE H©N®RABELE HIGH COURT 0F KERAELA AT 0.P.(F.C.) N©.492 of 2021 PETHTHONER & 1ST RBSPONDENT 1 Divya Rajan aged 35 years W o Bincesh.P.B Thumpa Vilayil House Kaduvinal.P.O Vallikunnam Muri Vallikunnam Village Alappuzha District Now residing at Ambadiyil liouse Pavumpa.P.O Karuiiagapally Taluk Kollam District Pin 690574 represented by Iler mother and power of attorTiey holcler Sumangala Devarajan aged 57 years W o Devai ajan resiclent of Sheeja Bhavanam Maiia|)pally North.P.O Kari]nagappally Kollam District Pin: 690574 now rest.ding at Ambadi.vi House Pavumba.P.O Manappally Karunagappally Kollam District Pin: 690574 2 J3ineesh.P.B aged 39 years S o Baby residing at Pisharikattil House Manakunnam Vil]agc Poothotta.P.O Ei nakulam District Pin: 682307. No.509 2019 for appointing hei as guardian of the children and their permanent` custody before the Family Court Cha.vai a. Due to la.ck of j.urisdiction O.P(G&W) .No.509 2019 was ti ansferred to the Family Court Ernafulam and r.e numbered as O.P.(G&W) No.2060 2020 3. It is submitted that 2nd applicant filed O.P.No.1579 2019 befoi e the Family Court Ernakulam and obtained an expczrfe decree of restitution of conjugal rights j= on 27.04.2020. He also filed O.P.No.1604 2021 before the Family Coil.rt Ernakulam for divo`i:ce 4. It is submittea``that now the applicants have been living separately for a period more than one year and that they ha.ve not been able to live together and tha.t_±Lhey hay_e mutually agreed that the marriage should be dissolved 5. It is agi eed by the applicants that permanent custody of the children shall be with the lst applicant and she may be appointed as guardian of them. 2nd applicant is having no objection in taking the children abroad by the lsl 6. It also agreed between the applicants that 2ncl applicant shall give monthly maintenance to the children as fixed by this honourable court after hearing both the 7. It is agreed by the parties that they shall have liberty to approach appropriate forum for their proprietary and monetary claims against each other Under such circumstances this Honourable Court may be pleased to pass an order dissolving the marriage between the applicants solemnised at Anupama Auclitorium Pavumba on 10.04.2011 in the best interest of • _!iilr S Suj ithkumar T . U Counsel for the 2ntlApplicant lst Respt)ndent