Abraham Joseph Samuel v. Shamarin Abraham Joseph

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945** **O.P.(FC) NO. 111 OF 2023** **AGAINST THE ORDER DATED 28.12.2022 IN I.A.NO.5 OF 2022 IN O.P.NO.840 OF 2022 ON THE FILE OF THE FAMILY COURT,** ## **THRISSUR** ## **PETITIONER:** **ABRAHAM JOSEPH SAMUEL AGED 45 YEARS, S/O SAMUEL ABRAHAM, FLAT NO.221, 2ND FLOOR, V.M SERENITY 2ND CROSS, BRINDAVAN LAY OUT, HORAMAVU MAIN ROAD, BANGALORE, PIN – 560043.** **BY ADVS. J.JULIAN XAVIER FIROZ K.ROBIN ROY JOSEPH ANIES MATHEW ANJANA RAM NIRMAL KURIEN EAPEN** ## **RESPONDENT:** ## **SHAMARIN ABRAHAM JOSEPH** **AGED 40 YEARS** **D/O JACOB C JOB, KOTTIL (H), TALAPPILLY TALUK, PIN – 680582.** **BY ADV K.P.SREEKUMAR** 2 O.P.(FC) No.111 of 2023 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 21.03.2023, THE COURT ON 31.03.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.111 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner in G.O.P.No.840 of 2022 before the Family Court, Thrissur has filed this Original Petition under Article 227 of the Constitution of India. He challenges Ext.P6, which is the order dated 28.12.2022 of the Family Court in IA 5 of 2022 in OP 840 of 2020. He has filed I.A.No.5 of 2022 for getting interim custody of his son Aron S.Abraham, aged 14 years. The Family Court did not allow that prayer, however, allowed him to have interaction with the child from 10.00 a.m. to 4.00 p.m. on every second Saturday and to contact the child through video call between 7.30 p.m. and 8.00 p.m. on every Wednesday, Saturday and Sunday. The petitioner challenges the said order. 2. On 06.03.2023 urgent notice on admission was directed to be served on the respondent. On 13.03.2023 the respondent entered appearance and filed a counter affidavit. The petitioner has filed a reply affidavit in answer to the said counter affidavit. 4 O.P.(FC) No.111 of 2023 3. On 17.03.2023, upon hearing the submissions of the learned counsel on both sides, we directed both parties to be present in person before the court at 10.15 a.m. on 21.03.2023 along with the child. In pursuance of that order, the petitioner, the respondent and the child appeared in person before us at 10.15 a.m. on 21.03.2023. We have interacted with them. Finding that expert counselling would be appropriate, they were directed to appear before the Family Counsellor attached to the Kerala High Court Legal Services Committee at 11.30 a.m. on the same day. At 3.00 p.m., the same day, they reported back. A report of the counsellor was made available for our perusal in a sealed cover. We have perused the report and interacted with the petitioner, the respondent and the child again. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. Aron S.Abraham is the only child of the petitioner and the respondent. The petitioner-father is working in Bangalore. He along with the respondent and the child was 5 O.P.(FC) No.111 of 2023 residing at Bangalore. The child was studying there. Although the respondent was working as a teacher earlier, he discontinued that avocation. Both of them would state that Aron S.Abraham is a brilliant student; even got qualified for General Knowledge Talent Search Olympiad. The petitioner would submit that the respondent left the matrimonial home, and went to her parental home at Vadakkencherry along with the child quite recently. The child was enrolled in Bharatheeya Vidya Mandir, Thrissur and now he is studying there. 6. The respondent in the meantime filed G.O.P.No.840 of 2022 before the Family Court, Thrissur for declaring her the guardian of the child and a decree of injunction to restrain the petitioner from forcibly taking away the child. Ext.P1 is a copy of the original petition. The petitioner entered appearance and filed a counter affidavit. He has also filed I.A.No.5 of 2022 seeking a direction to the respondent to produce the child before the Family Court and to give him custody. The respondent filed a detailed counter reiterating her contentions in the original petition. 6 O.P.(FC) No.111 of 2023 7. The Family Court directed both the parties and child to appear before the court. On their appearance, they were sent for counselling. They were referred for counselling with a Clinical Psychologist also. In consideration of the report of both the Principal Counsellor and Clinical Psychologist as also the desire expressed by the child, the Family Court declined the request of the petitioner to give him custody of the child. 8. The learned counsel appearing for the appellant would submit that the child having been stayed along with the respondent, his preference and desire would be influenced by the mother and that was why he is reluctant to go along with the father. If it is considered dispassionately bearing in mind the welfare of the child, his custody is liable to be handed over to the father. The learned counsel would also submit relying on the decision of this Court in **Hirosh Joseph v. Tina Kalayil [2023 (1) KLT 461]** that the claim to get custody of the child of the petitioner is genuine. It is submitted that the child being very studious and brilliant, his education at 7 O.P.(FC) No.111 of 2023 Bangalore will ensure him a bright future and therefore his custody has to be given to the father. During interaction, the petitioner also stated his anxiety about the future of the child. In his view, academic avenues are less at Thrissur comparing to Bangalore. He accordingly claims to give the child in his custody. He had, however, conceded that in case, it is found that the child should continue his studies at Thrissur, the petitioner may be given periodical overnight custody, especially during vacation. 9. The child is now in his prime stage of education. He has enrolled in Bharatheeya Vidya Mandir, Thrissur. He can commute from the parental house of his mother at Vadakkencherry, where they are now staying. Of course, there is a distance of 21 kms. between two places, and daily commutation may cause some inconvenience. The child, however, stated that he is comfortable in studying at Bharatheeya Vidya Mandir, Thrissur, and staying along with his mother at Vadakkencherry. He is a grown up child, capable enough to take a rational decision in his affairs. Taking into 8 ## O.P.(FC) No.111 of 2023 account desire of the child and other attending circumstances, we are of the view that the child has to continue in the custody of the mother. The decision regarding custody of the child in **Hirosh Joseph** (supra) was also taken specifically by giving due consideration to the desire of the child, though he was aged only 10 years. 10. In **Rohith Thammana Gowda Vs. State of Karnataka [AIR 2022 SC 3511]** the Apex Court held that in a matter involving the question of custody of a child it has to be borne in mind that the question 'what is the wish/desire of the child' is different and distinct from the question 'what would be in the best interest of the child'. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. 9 O.P.(FC) No.111 of 2023 11. Therefore, the desire of the child and welfare of the child are different. However, while considering and best interest of the child, the desire of the child also has relevance, especially when the child is grown up having ability to take rational decision. In such a case, the desire of the child and the convenience of education and comfortable stay have to be given more importance than the rights of the parents to have custody. viewed in the said perspective, we are of the view that the order of the Family Court declining interim custody to the petitioner does not suffer from any illegality. Unless the order under challenge is perverse or against express provisions of law, this Court cannot interfere with it in exercise of the powers under Article 227 of the Constitution of India. Therefore, we find no reason to interfere with Ext.P6 order of the Family Court in I.A.No.5 of 2022. 12. The petitioner made a further request that interim custody of the child for a few days during the school vacation may be allowed to him. That is a matter to be decided by the Family Court, Thrissur, after taking into account all necessary 10 O.P.(FC) No.111 of 2023 aspects, including the school timings of the child. Therefore, we leave that question to be decided by the Family Court. Original Petition is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) No.111 of 2023 ## **APPENDIX OF OP (FC) 111/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PETITION FILED UNDER SECTIONS 7 AND 12 OF THE GUARDIANS AND WARDS ACT R/W SECTION 7 (1) (D) (G) OF THE FAMILY COURTS ACT DATED 04.04.2022 BY THE RESPONDENT** - **EXHIBIT P2** - **TRUE COPY OF THE COUNTER STATEMENT DATED 01/2023 FILED IN G.OP NO.840/2022 BY THE PETITIONER HEREIN** **EXHIBIT P3 TRUE COPY OF THE PETITION DATED 01.06.2022 SUBMITTED BY THE PETITIONER BEFORE THE FAMILY COURT UNDER SECTION 12 OF THE GUARDIAN AND WARDS ACT, 1890** - **EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT DATED 31.07.2022 SUBMITTED BY THE RESPONDENT HEREIN** - **EXHIBIT P5 TRUE COPY OF THE LEGAL NOTICE DATED 23.04.2022 ISSUED ON BEHALF OF THE PETITIONER TO THE RESPONDENT** - **EXHIBIT P6** **TRUE COPY OF THE ORDER DATED 28.12.2022 IN I.A NO.5/2022 IN G.OP NO.840/2022 OF THE FAMILY COURT, THRISSUR** - **RESPONDENT EXHIBITS** - **EXHIBIT-R1(A) TRUE COPY OF THE CERTIFICATE EVIDENCING HIS RANK AT THE STATE LEVEL BY TECH FEST IIT BOMBAY, DATED NIL** - **EXHIBIT-R1(B)** - **TRUE COPY OF THE MESSAGE FROM AAKASH NATIONAL TALENT HUNT EXAM., DATED NIL** 12 O.P.(FC) No.111 of 2023 **EXHIBIT-R1(C)** **TRUE COPY OF THE INFORMATION SHOWING THE RESULT (AAKASH NATIONAL TALENT HUNT EXAM.), DATED NIL**