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2012 Supreme(Online)(KER) 40456
HIGH COURT OF KERALA
K.T.SANKARAN, M.L.JOSEPH FRANCIS, JJ
V V SURESH BABU – Appellant
Versus
K SHAMEER – Respondent
MATRIMONIAL APPEAL 250/2012
The decision emphasizes mediation's efficacy in familial disputes and the implementation of mutual terms in custody arrangements provided by both parties.
Headnote:
Custody - Family Law - Special Marriage Act - Sections 27(1)(a), 27(1)(d) - The court granted a decree for divorce and modified the custody arrangement based on mutual settlement, underscoring the importance of mediation and consent in family disputes.
Fact of the Case:
The appellant sought custody of the child and divorce from the first respondent, faced rejection for permanent custody by the Family Court, but the parties later reached a settlement which included modified visitation rights and mutual agreement on divorce.
Finding of the Court:
The court recognized the settlement reached by the parties and allowed the appeals, passing a decree for divorce and updating the visitation rights in accordance with their agreement.
Issues: The primary issues were the custody of the child and the dissolution of marriage under the Special Marriage Act, alongside objections raised regarding jurisdiction.
Ratio Decidendi: The court held that mediation is critical in resolving family disputes, and settlements can override initial concerns regarding jurisdiction or custody, as long as both parties consent.
Final Decision: The appeals were allowed, granting a divorce and modifying the custody arrangement as per the mutual settlement.
JUDGMENT
K.T. Sankaran J., The parties in both appeals are the same. The appellant is V.V. Suresh Babu, who is the husband of the first respondent namely, Seema @ Naseema. The second respondent is alleged to be the adulterer of the first respondent. He was set ex parte before the Family Court. He has not entered appearance before this Court also.
2. O.P. No.397/11 on the file of the Family Court, Kozhikode was filed by the appellant for custody of the minor child. The Family Court rejected the claim for permanent custody made by the appellant, but, granted only visitorial rights to him. M.A.No.255/12 was filed challenging the judgment in O.P.No.397/11.
3. O.P.No.593/11 was filed by the appellant for dissolution of marriage under Sections 27 (1)(a) and 27(1)(d) of the Special Marriage Act . The Family Court held that the appellant established both these grounds. However, the Family Court dismissed O.P. No. 593/2011 on the ground that it has no territorial jurisdiction, accepting the objection raised by the first respondent. Challenging the judgment of the Family court in O.P.No.593/2011, M.A.No.250/12 was filed.
4. The parties were referred for mediation. The disputes between the appellant and the first respondent were settled before the Mediation Centre. A Memorandum of Settlement was arrived at between them. The terms of the settlement are the following:
“1. The Appellant (V.V. Suresh Babu) and 1st Respondent (Seema @ Naseema) in both cases belonged to two different religion. They got married and in the wed lock a girl child namely Saniya Suresh was born on 24.10.2004.
2. Mat Appeal No.255/2012 arises from O.P.No.397/2011 of Family Court, Kozhikode which is a petition filed by the Appellant for permanent custody of the minor child Saniya Suresh. As per the Judgment in O.P. 397/2011 the relief for permanent custody was rejected. The appellant was given visitorial right of the child on every second Saturday and Sundays.
3. Mat Appeal 250/2012 arises from O.P.593/2011 of Family Court, Kozhikode which is a petition filed by the appellant for divorce of the marriage entered into between appellant and 1st respondent under the Special Marriage Act , which was registered on 17.08.2007 at S.R.O., Areecode.
4. The matter was discussed and appellant and the 1st respondent arrived at the following settlement.
(i) The appellant is willing to limit the visitorial right to half the days of Onam, Christmas and summer vacations i.e. 5 days each during Onam and Christmas vacation and 30 days during summer vacation.
(ii) The appellant will have custody of the minor child during the first half of these vacations.
(iii) The first respondent will entrust the child at the residential house of appellant's sister Smt.Sathyabhama (Manappattu House, Vettilapara, Malappuram district) at 10 A.M. On the next day of the closing day of school. The child will be returned at the same place at 10 A.M. on the 6th day or 31st day of the vacation as case may be.
(iv) The condition imposed by the Family Court that the 1st respondent should not take the child to abroad without the prior permission of the Family Court, Kozhikode will remain in force.
(v) The appellant and 1st respondent have no objection in allowing Mat Appeal No.250/2012 allowing the prayer for divorce of the appellant and 1st respondent.”
5. The learned counsel for the first respondent submitted that the objection regarding the territorial jurisdiction raised by the first respondent in O.P. No. 593/11 is withdrawn by the first respondent.
6. Accepting the compromise, the Mat. Appeals are disposed of as follows:
a) Mat. Appeal No. 250/12 is allowed and O.P.
No.593/2011 on the file of the Family Court, Kozhikode is allowed and a decree for dissolution for marriage between the appellant and the first respondent is passed under Section 27 (1a) and 27(1d) of the Special Marriage Act , with effect from today.
b) Mat. Appeal No. 255/12 is partly allowed and the decree passed by the Family Court, Kozhikode in O.P.No.397
