JUDGMENT :

[P.G. Ajithkumar, J.]

1. This is an appeal filed invoking Section 19(1) of the Family Courts Act, 1984, Section 49 of the Guardian and Wards Act, 1890 and Order XLI Rule 1 of the Code of Civil Procedure, 1908.

2. The petitioner in O.P.(G&W) No. 379 of 2019 before the Family Court, Kottayam at Ettumanoor is the appellant. After condoning the delay of 36 days in filing the appeal, this appeal was admitted on 28.10.2022.

3. Heard the learned counsel for the appellant and also the learned counsel appearing for the respondents.

4. As directed by this Court on 15.11.2022, both parties along with the child appeared in Court in person on 29.11.2022. We interacted with the child as well as the parents.

5. The appellant filed O.P.(G&W) No. 379 of 2019 seeking custody of the minor child Jake Joseph Hirosh, aged 10 years. Marriage between the appellant and the respondent was dissolved on 31.01.2015 as per the decree in O.P.No.1454 of 2014 of the Family Court, Ernakulam. The parties agreed that the child would be in the custody of the respondent and an amount of Rs.8 lakhs was paid to the respondent towards the maintenance of the child which had to be kept in a fixed deposit. Later, the appellant filed O.P.(G&W) No.379 of 2019 alleging that the respondent went to Germany after entrusting the child with her parents and the parents were not able to look after the child. The appellant contended that he is working in Bangalore, but stays at his parental house at Kottapuram in Thrissur District since the nature of the work is 'work at home'; and he is entitled to get the custody of the child.

6. The respondent filed an objection. She contended that the appellant is not a person entitled to get custody of the child, since the custody was consented to be with the respondent. He is estopped from claiming custody of the child. Since the child is studying in a CBSE School, the place of residence cannot be changed. The respondent has already returned to her native place and is now residing with her parents and the child.

7. The Family Court recorded oral evidence of PW1 and Exts.A1 to A12 and B1 to B5. The Family Court on appreciating the said evidence held that there was no reason to allow the appellant to have permanent custody of the child and accordingly the O.P. was dismissed. It is observed further that the appellant sought for making some arrangements regarding the interim custody of the child, even if he is not allowed the permanent custody. The Family Court, however, observed that the parties to take care of such matters themselves and further held that the arrangement in the judgment in Mat Appeal No.262 of 2016 would govern those matters.

8. It was alleged that the appellant was abroad, and other than the grandfather and grandmother, there was nobody to look after the child. When the appellant is available in the station and is residing along with his parents who were very much available and able to attend to the needs of the child, he is entitled to have custody of the child. It is also contended that for the welfare of the child also he should be placed in the custody of the appellant. Accordingly he claims custody of the child in modification of the Ext.A3 judgment rendered by this Court in Mat.Appeal No.262 of 2017.

9. As per Ext.A5 judgment, the appellant was allowed to permanent custody of the child. The arrangement made as per Ext.A5 judgment was not honoured by the respondent and that resulted in filing an interlocutory application to initiate coercive steps against her. The order of the Family Court in I.A.No.325 of 2018 by which the respondent was directed to produce the child and hand over to the appellant was challenged by the respondent before this court in O.P.(FC) No.160 of 2018. This Court set aside the order in I.A.No.325 of 2018 however, the petitioner was allowed to approach the Family Court for getting visitation right pointing out the change in the circumstances. The Family Court after considering the evidenc