Sindhu Kozhy Thankachan vs Sunil Thnkachan

R. Basant, J.—This appeal is preferred by the mother of a minor child against the conditions imposed by the Family Court, Thiruvalla while disposing of her application to get herself appointed as guardian and for permission to take the child to her place of employment abroad. The respondent herein is the father of the child.

The child is now aged about 9 years, she having been born on 23.1.2001. The spouses have already obtained a decree for dissolution of marriage, in O.P. No. 285 of 2006, filed by the respondent, which has become final. The child is in the custody of the appellant/mother. She is employed abroad in the U.K. as a Nurse. The child is at the moment in the custody of the maternal grandparents. The appellant wanted to take the child to the U.K., so that the child can be with her. She wants to educate the child at U.K. and bring her up there. It is in these circumstances, that the petitioner approached the Family Court, Thiruvalla with O.P. No. 527 of 2009. In the O.P., the appellant prayed that she may be declared to be the guardian of the minor child and she may be held entitled to be its custody. It was also prayed before the Court below that she may be permitted to take the child to the place of employment (U.K.) - outside the jurisdiction of the Court.

The respondent was served. He did not choose to enter appearance. He did not oppose the application filed by the appellant/petitioner. The appellant examined her mother as PW1 and marked Exts.A1 to 3. The Court below by the impugned order allowed the petition. We extract the operative portion of the order below:

In the result, the petition is allowed granting custody of the minor Yohanna Riya Sunil to the petitioner and she is permitted to take the minor along with her to U.K. She will file in Court annual report regarding the health condition of the minor, prgress of the studies there and in general about the welfare. The petitioner will execute a bond for Rs. 2 lakhs (Rupees two lakhs only) before this Court for the prompt execution of the conditions imposed. The petitioner will also produce a copy of her passport and the details regarding her present residential address and official address in one month.

The learned Counsel for the appellant submits that the Court below erred in not granting the prayer for appointing her as guardian made in the petition. No reasons are shown for not granting the prayer, as such. The appellant petitioner has a further grievance that the conditions have been imposed unnecessarily by the Court below. The appellant is not really aggrieved by the conditions imposed. The appellant feels that the Authority granting Visa may, because of the conditions imposed refuse grant of visa to the child. Unless the Court recognizes the unfettered right of the appellant as guardian to take the child out of India, it is likely that visa may not be granted to take the child abroad. There is absolutely no necessity to impose any conditions on the appellant. The appellant is the mother of the child and is the person most interested in the welfare of the child. The respondent, divorced husband/father of the child has no interest in the child. Before the Court below as also before this Court though served, the father of the child has not entered appearance. Even the father of the child is convinced that the welfare of the child demands and warrants appointment of the appellant as the guardian of the child and permission for the appellant to take the child along with her to her place of employment. The learned Counsel for the appellant submits that the appellant is not in any way trying to avoid any responsibility. To show her bonafides, the appellant made a request before this Court, that she may be permitted to deposit an amount of Rs. 2 lakhs before the Court below. Before us she has filed a further undertaking to comply that all the directions that may be issued from time to time by the Courts. In these circumstances, there is absolutely no necessity to impose any conditions. The court below had no justifiable reason for not granting the prayer for appointing the appellant as guardian of the child. The impugned order may be modified and the petition may be allowed as prayed for, prays the learned Counsel for the appellant.

We, do note that the manner in which the appeal is worded does not completely justify the challenge raised against the impugned order but all the same, we find merit in the grievances raised by the learned Counsel for the appellant. We find no reason not to grant the primary relief to the appellant - of getting herself appointed as guardian. She having shown her bonafides by depositing an amount of Rs. 2 lakhs and she having filed an affidavit before this Court (though there can be reservation about the validity of the attestation of the affidavit) undertaking to comply with the directions that may be issued from time to time, we are satisfied that no further specific conditions need be imposed. We are satisfied that the challenge in these appeal is justified and is entitled to succeed.

In the result;

(i) This appeal is allowed.

(ii) In supercession of the impugned order passed by the Family Court, the appellant is appointed as the guardian of her minor daughter, Yohanna Riya Sunil, born on 23.1.2001.

(iii) The appellant is permitted to keep the child in her custody and take the child out of India for residence along with her in the U.K., where she is now employed.

(iv) The Court below is permitted to retain the deposit of Rs. 2 lakhs until the minor attains majority.

(v) We accept the undertaking of the appellant that the directions of Courts shall be complied with from time to time and if there be any default, the amount in deposit can be forfeited.

(vi) Needless to say after the attainment majority of the ward/minor child, the court below shall be at liberty to release the amount to the appellant, if there be no valid reasons not to retain the same.