Point of Law : Whether governed by any personal law, or the provisions to the Guardian and Wards Act, would be cognizable only by the Family Court, if the matter arises within the area over which the jurisdiction is exercisable by the Family Court.

JUDGMENT :

Sophy Thomas, J.

The mother of four minor children is before us, challenging Ext.P10 order of the Family Court, Pala dismissing her prayer for interim custody, and permission to take the children to Australia.

2. The petitioner and respondent are husband and wife. Four children were born in their lawful wedlock. The parents and the children were all in Australia, as the petitioner was employed there as a Staff Nurse. In the year 2019, the respondent came back to his native along with the four children and since then, the children were under his care and custody. The elder child, Maria Koshy, lodged a complaint before Ponkunnam Police, alleging ill-treatment from the part of her father and a crime was registered against him. Thereafter, the elder child was with the maternal grandmother, and the other children continued with the father. The petitioner came down from Australia to see her children, but she was not permitted by the respondent. So, she filed O.P No.772 of 2021 before Family Court, Pala along with I.A No.2 of 2021 for interim custody of the three children, who were under the custody of the respondent. The Family Court directed the respondent to produce the children before the court on 19.01.2022. But the respondent failed to do so, and so, she approached this Court by filing O.P (FC) No.52 of 2022. This Court gave custody of the three children to the mother subject to visitorial rights of the father, and the O.P (FC) was disposed of directing the Family Court to take a decision on the prayer for interim custody.

3. Meanwhile, the petitioner filed I.A No.5 of 2022 before the Family Court for permitting her to take the children to Australia, as it will be better for their education and well-being. After admitting objections and hearing the rival contentions from either side, the Family Court passed Ext.P10 common order in I.A No.2 of 2021 and I.A No.5 of 2022 granting interim custody of the children to the petitioner only till 22.03.2022 and to return the three children to the respondent, as she goes back to Australia. Her prayer for permission to take them to Australia was also rejected.

4. Assailing Ext.P10 order, petitioner/mother filed above O.P(FC) contending that, the elder daughter is being taken to Australia as permitted by Family Court, Pathanamthitta in O.P No.762 of 2021 filed by the respondent herein. The other three children are also having valid visa, so that the petitioner can take, all of them together to Australia now itself. If she is permitted, they can be admitted in Australian school, this academic year itself, so that they can continue their studies there, smoothly. Originally, the children were studying in Australia, and the respondent took them back to his native. He is living in a rented house and he has no job or income. No female members are there in his house to attend the children, especially the two adolescent girl children. Whenever he goes out, he is locking the children inside the rented house. He is not able to provide proper food, dress or education to the children. The girl children, who are in their adolescent age, needs frequent attention, and emotional support of their mother for their welfare and well-being. The petitioner is able to attend all their needs. The elder daughter, who is now 15 years old, is capable of attending the younger children, whenever the petitioner will be out for her job.

5. We tried our level best to have an amicable settlement between the parties and persuaded them to go to Australia together with the children. But, the petitioner would say that, she is unable to bear the ill-treatment, both physical and mental, from the part of the respondent, and she is taking steps to get their marriage dissolved.

6. The O.P filed by the petitioner for getting guardianship and custody of the three children is pending before the Family Court. Only interim custody arrangements were made while the petitioner/mother was available here. It is true that, the petitioner/m