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2022 Supreme(Online)(KER) 36425
HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
JAMES ROBERT EDWARD PEIRCE – Appellant
Versus
ANNA MATHEWS – Respondent
Crl.Rev.Pet 1292 2016
SRI.T.K.ANANDA KRISHNAN SRI.P.SAJU
The welfare of the child is the primary consideration in custody disputes, regardless of parental citizenship or claims of guardianship.
Headnote:
Custody - Child Custody and Divorce - Guardians and Wards Act, 1890: Sections 7, 12, 17; Citizenship Act, 1955: Section 3; Aadhaar Act, 2016: Section 3 - The court interpreted provisions regarding jurisdiction for guardianship based on the child's ordinary residence and welfare.
Fact of the Case:
The case involved a British national husband and an Indian wife seeking divorce and child custody amidst allegations of cruelty and incompatibility, with the wife claiming continuing ill-treatment and the husband contesting custody rights.
Issues: The key issues were the jurisdiction to grant guardianship and the welfare of the child amidst claims by both parents for custody and restitution of conjugal rights.
Ratio Decidendi: The court held that prolonged separation and mutual cruelty justified a divorce, and the welfare of the child was paramount in determining custody, favoring the mother due to her direct care and the child's established residence.
Final Decision: Divorce granted; custody awarded to mother with visitation rights for the father.
J U D G M E N T
Sophy Thomas, J.
‘Love is blind, which knows no reason, no boundaries, no distance’.
Sri.James Robert Edward Peirce, a British National, fell in love with Smt.Anna Mathews, a Keralite lady, and they got married on 22.11.2008 at St.Francis CSI Church, Kochi. They lived together as husband and wife, and a boy child was born in their lawful wedlock. Their relationship became strained due to incompatibility of nature and temperament and they fell apart, and from July 2012 onwards, they are living separate. Thereafter they launched several litigations against each other for custody of the child, domestic violence, restitution, divorce etc.
2. The husband is a freelance filmmaker who often visits Kochi, and he was involved in various film projects for promoting tourism in India. The wife, who was a Journalist, got acquainted with him at Fort Kochi, and their acquaintance developed into a love affair, which eventually lead to their marriage. According to the wife, after marriage, she was ill-treated by the husband, and he continued his ill-treatment even after birth of the child. Since she was not able to withstand the cruelties extended to her by the husband, she returned to her paternal house along with her child. Thereafter she filed O.P No.1028 of 2012 to dissolve their marriage. The husband filed O.P No.302 of 2013 for restitution of conjugal rights, and also O.P No.303 of 2013 for getting guardianship and custody of his minor son Samuel Charles Robert Peirce alias Sam.
3. The Family Court, Kollam tried the above three O.Ps together treating the O.P for divorce as the leading case. PWs 1 and 2 were examined and Exts.A1 to A3 were marked from the side of the petitioner/wife, and RWs 1 and 2 were examined and Exts.B1 to B29 were marked from the side of the respondent/husband. As per common order dated 19.08.2014, the Family Court dismissed the Divorce O.P filed by the wife, and allowed the restitution O.P filed by the husband. The O.P filed by the husband for getting guardianship and custody of the child was also dismissed.
4. The wife filed Mat.Appeal No.849 of 2014 against dismissal of her divorce petition and Mat.Appeal No.836 of 2014 against the decree for restitution of conjugal rights granted in favour of the husband. The husband filed Mat.Appeal No.816 of
2014 against the dismissal of O.P (G&W) No.303 of 2013.
5. In Mat.Appeal No.816 of 2014, the husband filed I.A No.2 of 2020 for getting interim custody of the child, and as per order in that I.A, he was given interim custody and contact rights through telephone calls. He filed R.P No.835 of 2020 in I.A No.2 of 2020 for shared custody of the child with both the parents, and to repatriate the child to U.K, to live with his father.
6. The husband filed W.P.(C) No.7321 of 2016 against his wife, mother-in-law and also against Government officials, for issuing a writ of mandamus or other appropriate orders to impound the Indian passport and Aadhar card of the child, as those documents were acquired, suppressing the fact that the child was a British citizen holding British passport.
7. The husband filed Crl.R.P No.1292 of 2016 against the judgment in Crl.Appeal No.225 of 2014, which was filed by the wife against dismissal of M.C No.34 of 2013 on the file of Chief Judicial Magistrate Court, Kollam. According to him, in the appeal no notice was served on him, and his wife had given a wrong address to avoid service of notice to him.
8. Now let us have a re-appraisal of the available facts and evidence, to find out whether any interference is warranted in the orders and judgments impugned.
9. Firstly, let us consider the cases for divorce and restitution.
10. The wife alleging matrimonial cruelties against her husband sought for a decree of divorce. According to her, the husband made her to believe that he was very loving and affectionate with sufficient financial background. But, from the very next day of marriage, he started demanding money from her. He was staying with her in
