IMPORTANT POINT
The welfare of the child is paramount in custody disputes, and custody orders can be modified upon changed circumstances.

JUDGMENT :

Devan Ramachandran, J.

We propose to be as brief as possible in this judgment, adverting to the peculiar circumstances and facts presented.

2. We are disposing of both these Original Petitions together because, the factual circumstances involved are common.

3. The petitioner and the respondent were married, but divorced and admittedly, both of them are remarried now. They have a son of 11 years in their union and he is now caught between the fight of his parents regarding his custody. The petitioner-mother went to Canada to study and she moved I.A.No.26/2023 in G.O.P 1537/2023 before the learned Family Court, Trissur, seeking permission to take the child with her; while, the respondent filed I.A.No.20/2022 in the same G.O.P., seeking that he be given custody of the child, so as to take him to Dubai, where he was employed.

4. The learned Family Court dismissed I.A.No.26/2023 filed by the mother holding that: ‘If the child is taken to Canada there is no doubt at all that the child will be totally alienate from the father. Moreover in view of the diplomatic strain between India and Canada it will not be possible to inforce any of the orders of the court at Canada. Suppose the petitioner and step father become citizen of Canada and the child also acquired citizenship at Canada there will be no purpose at all for all these proceedings. None of the orders will be able to inforce and the father will not be able to exercise any of his right or to discharge his duty towards the child. The petitioner has no property in India whereas the respondent has no properties in India. So, I find that in no circumstances, the petitioner can be permitted to take the child to Canada. So there cannot be any direction to give authorization letter to the respondent (sic).

5. The learned Court then allowed I.A.No.20/2022, thus allowing the father to be in custody of the child. For ordering so, the learned Court concluded as under:

I find that in the happening of change of circumstance whereby child is alone it is necessary to give the custody of the child to the father of the child. It is also important to note that UAE is a reciprocating territory has notified by Central Government u/s 44 A CPC. So it is easy to exercise the control over the child by the court. In these circumstances, I find that the father can be permitted to take the child to Dubai and to continue his education at Dubai after this academic year.

6. After ordering as above, the learned Family Court reserved certain rights in favour of the mother, to the following effect:

At the same time, the petitioner mother will be entitled for the custody of the child during the vacation period whenever she came back to India. Similarly the mother will be entitled for the custody of the child during every 2nd Saturday and Sunday (from 10 am on Saturday till 5 pm on Sunday).

All the visitation rights now available to the father as per the mediation agreement and subsequent orders will be equally applicable to mother.

7. The petitioner challenges both these orders as being illegal and unlawful.

8. Sri.Praveen K. Joy – learned counsel for the petitioner-mother, submitted that his client is now returning to India permanently, and that, therefore, she is entitled to the custody of her child. He asserted that, by the liberty reserved to her in the afore extracted portion of the order, she is fully entitled to seek the same.

9. However, in refutation, Smt.Dhanya P.Asokan, learned Senior Counsel, instructed by Sri.M.R.Venugopal – learned counsel for the respondent-father, submitted that the order in question was not based on a summary procedure, but after allowing the parties to trial and adducing of evidence. She contended that, it is the welfare of the child which is paramount and that this was specifically noticed by the learned Court, while issuing the impugned orders. She concluded arguing that, in any event, the petitioner cannot now assail the orders because, she admittedly was in Canada throughout;