IMPORTANT POINT
The paramount consideration of the welfare and interests of the child in custody matters, the importance of following prescribed procedures for recording settlements and issuing decrees, and the availability of legal remedies for seeking modification of custody arrangements.

The petitioner herein is the respondent in O.P.(G&W) No. 496/2022 on the file of the Family Court, Thiruvananthapuram. The said petition was filed by the former husband of the petitioner for declaring himself as the guardian and for permanent custody of the child. The challenge raised by the petitioner as regards the maintainability of the petition was rejected against which a review petition was filed. The same was rejected by Ext.P10 order. The interim custody of the child was granted to the petitioner which was later modified by Exhibit P13 order. Being aggrieved by the above orders, the petitioner has filed the Original Petition before this Court seeking the following reliefs:

i) Pass appropriate order setting aside Ext.P10.

ii) Pass appropriate order setting aside Ext.P13.

iii) Pass appropriate orders directing the Family Court, Thiruvananthapuram to reconsider Exts.P8 and P11.

2. To appreciate the contentions, brief facts leading to the passing of the orders impugned are required to be stated. For ease and clarity, the parties shall be described as per their status before this Court.

a) The marriage of the petitioner and the respondent was solemnized on 14.5.2007 and a girl child was born on 1.5.2010. The child has been diagnosed with Attention Deficit Hyperactivity Disorder and Speech and Language Disorder. Within a short period, the relationship between the parties became strained. O.P.No.142/2016 was filed by the petitioner seeking dissolution of marriage and O.P.(G & W) No.136/2016 was filed seeking permanent custody and guardianship of the child. Both these petitioners were sent for mediation and subsequently, both parties entered into a Memorandum of Agreement executed under Section 89 of the Code of Civil Procedure r/w Rule 24 and 25 of the Civil Procedure (Alternate Dispute Resolution) Rules, 2008 (“Rules, 2008” for the sake of brevity).

b) As per the terms of the agreement, while settling the entire dispute, the permanent custody of the minor child was agreed to be with the petitioner-mother, and the respondent-father was granted the visitation rights to see the minor child in the premises of the Family Court, Thiruvananthapuram once in three months. It is also stated in the agreement that all the pending matters can be disposed of in terms of the agreement. The parties have acted in terms of the agreement.

c) While so, after about 4 years, the respondent approached the Family Court and instituted O.P.(G&W)No. 496/2022 seeking permanent custody and for a declaration that he is the legal guardian.

d) The petitioner entered appearance and filed an objection as to the maintainability. The Family Court was of the view that though the parties had entered into an agreement, the cases were not disposed of in terms of the compromise agreement. It was also noted that the agreement was not made a part of the order in those cases. The cases were dismissed as not pressed. It was held that the bar would be applicable only if the earlier petition was allowed or disposed of on merits.

3. Being aggrieved, a review petition was filed which was also dismissed by Ext.P10 order holding that the question of guardianship of the child was not decided in the earlier petition.

4. Later, the application for modification of interim custody was partly allowed and the interim custody of the child was ordered to be handed over to the respondent from 10:30 am to 1:30 pm on every fourth Saturday at the premises of the Family Court at Bangalore.

5. Sri. V. Philip Mathews, the learned counsel appearing for the petitioner, would refer to the Rules, 2008, and it is pointed out by the learned counsel that as the parties have entered into a settlement agreement, the Family Court was obliged to record the settlement in terms of Section 89 of Code of Civil Procedure and Rules 24 and 25 of the Rules. For reasons unknown, the Family Court proceeded to dismiss the petition as not pressed. The said action is illegal. Reliance is also placed on Order XXIII Rule 3