Sophiamma Jacob vs George Joseph

R. Basant, J.—Respondent has been served. There is no representation for the respondent.

The parties to this Mat. Appeal are divorced spouses. The appellant is the wife and respondent is the husband. Earlier proceedings between them were settled in O.P. No. 727/08. Document No. 4 is copy of the agreement filed in that proceedings and document No. 3 is the copy of the joint compromise settlement. Document Nos. 5 and 6 are copies of the affidavits filed by the contestants before the Family Court in O.P. No. 727/08.

The marital tie has been dissolved. There is only one child born in the wedlock that is Aleniya Tessy George. That child is now aged 3 years.

The appellant is employed abroad. The child has been living with its mother, the appellant herein all along. The appellant wanted a formal declaration of guardianship in order to enable her to take the child to her place of employment. To get such declaration of guardianship, she filed the present application O.P.(G&W) No. 459 of 2009 before the Family Court at Ettumanoor. The said application was resisted by the husband/the respondent herein on the plea that the matter has been settled and all terms have been incorporated in the agreement and in the joint compromise application filed earlier. The court below, vide impugned order, accepted the contention of the respondent/husband and came to the conclusion that the parties having settled their disputes when the matter was pending before the court in O.P. No. 727/2008, no further orders are necessary.

The appellant claims to be aggrieved by the impugned order. The respondent, though served, has not entered appearance. The learned Counsel for the appellant submits that the appellant had, in fact, not asked for any change in the present arrangement. She had only wanted a declaration of guardianship which is virtually accepted and conceded in the proceedings before the Family Court earlier in O.P. No. 727/08. A formal declaration of guardianship has not been given and this stands in the way of the appellant securing necessary visa and other documents to facilitate residence of her daughter with her in the place of her employment abroad.

We have considered all the relevant aspects. We find merit in the submission that notwithstanding the consent disposal of O.P. No. 727/08, in the interest of welfare of the minor child, such a declaration is necessary. We are satisfied that the earlier order in O.P. No. 727/08 cannot justifiably lead to denial of the relief claimed in the present petition.

In the result,

a) This appeal is allowed.

b) O.P (G & W) No. 459/09 is allowed.

c) The impugned order is set aside.

d) The appellant Sophiamma Jacob is declared to be the guardian of her daughter Aleniya Tessy George born on 16/05/2006. She shall be at liberty to take the minor child along with her to her place of employment abroad.

e) We further observe that all other conditions stipulated by the order in O.P. No. 727/08 shall continue to remain in force.