Adarsh C.B v. Aswathy Sidharan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 OP (FC) NO.665 OF 2022** **AGAINST ORDER DATED 10.11.2022 IN I.A.NO.7 OF 2020 AND I.A.NO.22 OF 2020 IN O.P (G&W) NO.185 OF 2019 OF THE FAMILY COURT, CHAVARA, KOLLAM DISTRICT** ## **PETITIONER/PETITIONER:** **ADARSH C.B AGED 43 YEARS S/O.CHANDRA BOSE K., RESIDING AT SANTHI, PADANORTH, KARUNAGAPALLY P.O., KOLLAM DISTRICT, PIN - 690518** **BY ADVS. VINAYAK G MENON K.SHAJ C.IJLAL RESHMA.P. ARUN CHAND BHARAT VIJAY P. MAJID MUHAMMED K. UMMUL FIDA MINU VITTORRIA PAULSON** ## **RESPONDENT/RESPONDENT:** **ASWATHY SIDHARTHAN W/O.ADARSH C.B., ASWATHY BHAVANAM, KALLELIBHAGOM MURI, KALLELIBHAGOM VILLAGE, KALLELIBHAGOM P.O.,** 2 O.P.(FC) No.665 of 2022 **KARUNAGAPPALLY, KOLLAM DISTRICT , PIN - 690519** **BY ADVS.** **SAYUJYA** **K.R.RAJEEV KRISHNAN(K/000773/2015)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON 10.01.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.665 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The petitioner in O.P (G&W) No.185 of 2019 on the file of the Family Court, Chavara has filed this Original Petition under Article 227 of the Constitution of India. He seeks to set aside Ext.P10 order and direct the Family Court to consider afresh Exts.P4 and P6 interlocutory applications in which the said order was passed. The petitioner alternatively seeks to issue an order enabling him to have interim custody of the child Kashinathan, aged 6 years, every Saturday and Sunday. 2. On 05.12.2022, when this matter came up for admission, notice was directed to be served on the respondent by special messenger. The respondent entered appearance through her learned counsel. On 12.12.2022, having heard the learned counsel appearing on either side, we directed both parties to be present personally before the Court along with the child on 19.12.2022. In terms of that order, both parties along with the child appeared in Court personally on 19.12.2022. After interacting with them, they 4 O.P.(FC) No.665 of 2022 were directed to appear before the Family Counsellor attached to the Kerala High court Legal Services Committee on the same day at 12.00 p.m. After counselling both parties along with the child appeared at 4.00 p.m. before the Court and we had interacted with them again. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. O.P.No.185 of 2019 was filed by the petitioner seeking to declare him the guardian of the minor, Kashinathan and allow him to have custody of the child. He filed I.A.No.458 of 2019 in that O.P for getting interim custody of the child. The parties raised rival contentions and claimed that each of them was more competent to be in custody of the child. The Family Court, Chavara, after considering the rival contentions, as per Ext.P2 order dated 22.08.2019, allowed the respondent to have custody of the child and the petitioner was allowed to have interaction with the child twice a month for two hours each. That order was followed by an order dated 5 O.P.(FC) No.665 of 2022 08.11.2019, whereby the respondent was directed to exclude her relatives and restrain such persons from interrupting the petitioner's interacting with the child. 5. While so, the petitioner filed I.A.No.7 of 2020 alleging that the respondent left for Gujarat, leaving the child with her parents, and to give him custody of the child. He also filed I.A. No.22 of 2021 in order to restrain the respondent from taking the child beyond the jurisdiction of the Family Court, Chavara. 6. The respondent filed objections to the said petitions. She contended that she went to Gujarat to pursue her studies of MSc in Forensic Odontology, at Gujarat Forensic Science University, Gandhinagar. She also filed I.A.No. in 458 of 2019 before the Family Court for modification of the order of interim custody. After considering those rival contentions in those interlocutory applications, the Family Court passed the impugned order. 7. The Family Court took notice of the facts that the respondent had to leave the State along with the child on 6 O.P.(FC) No.665 of 2022 account of the emergency and she had, in fact, filed an application to modify the order of interim custody, so as to get her permission to take the child along with her. Accordingly the impugned order regarding interim custody was passed in the following terms: “I.A.Nos.7/20 and 22/21 is partly allowed and the petitioner is given custody of the ward on all Sundays between 11.00 a.m and 4.00 p.m. In the premises of this Court. The exchange of the ward has to be made in the presence of the Court Officer of this Court. All other reliefs sought for in the applications are disallowed. No Costs.” 8. The grievance of the petitioner is that no overnight custody is given to him which has the effect of denying fatherly care to the child. Unless the child is allowed to be with the petitioner for two consecutive days at least, it would not be possible for developing an emotional bondage between them. The petitioner would allege that only because of the intervention of the respondent and her relatives, the child shows reluctance to go along with him. He claims therefore 7 ## O.P.(FC) No.665 of 2022 that it is absolutely necessary for giving overnight custody of the child to him. The respondent would contend that she was now returned to the State and she can well take care of the affairs of the child. 9. During the interaction, we noticed that the child was initially reluctant even to talk with the petitioner. After allowing the child to be with the father for sometime in the presence of the respondent, the attitude of the child towards the father has slowly changed. Relationship between the petitioner and the respondent now is not at all cordial. When we interacted after the counselling session, the child again had shown reluctance to freely interact with the father. From the circumstances, we are not able to rule out an attempt by the respondent to prevail over the wish and desire of the child. However, that cannot be sorted out in this proceedings under Article 227 of the Constitution of India. 10. O.P(G&W) No.185 of 2019 is pending consideration before the Family Court, in which all the contentions of the parties are to be considered in the light of the evidence to be 8 ## O.P.(FC) No.665 of 2022 adduced by the parties and the attending circumstances. Until a final decision in the matter of custody of the child is taken by the Family Court, the petitioner can be allowed to have visitation rights only, especially when an emotional gap is developed between them. 11. In **Yashita Sahu v. State of Rajasthan [(2020)** **3 SCC 67]** the Apex Court held that law is well settled by a catena of judgments that, while deciding matters of custody of a child, primary and paramount consideration is the welfare of the child. If the welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and 9 O.P.(FC) No.665 of 2022 he or she alone is entitled to custody of the child. The court must therefore be very wary of what is said by each of the spouses. 12. In **Yashita Sahu** (supra) the Apex Court noticed that a child, especially a child of tender years requires the love, affection, company, and protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation and every re-union may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent 10 O.P.(FC) No.665 of 2022 and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights. A child has a human right to have the love and affection of both parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents. 13. In **Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476]** the Apex Court held that, whenever the court disturbs the custody of one parent, unless there are compelling reasons, the court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of 11 O.P.(FC) No.665 of 2022 having the company of both parents. Such orders are not passed only for protecting the rights of the parents. xx xx xx The court cannot accept the submission that, while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents. 14. Although the petitioner has a right to have the custody of the child as that of the respondent, their right has to yield to the welfare of the child. What is predominant is the best interest of the child. In such circumstances, we are of the view that giving overnight custody of the child to the petitioner before creating a conducive relationship and developing an emotional bondage between them does not cater to the welfare of the child, whereas that may be counter productive. Hence the directions of the Family Court regarding the interim custody contained in the order dated 10.11.2022 have to continue for the time being. We order so. It is made clear that both the parties have to strictly obey the directions 12 O.P.(FC) No.665 of 2022 of the Family Court and during the period when the child is entrusted with the petitioner, there shall not be any interference by the respondent or her relatives, that is to say, the petitioner shall have opportunity to freely interact with the child during that period. With the aforesaid directions, this original petition is dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV 13 O.P.(FC) No.665 of 2022 ## **APPENDIX OF OP (FC) 665/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1 THE TRUE COPY OF O.P. (G&W) NO. 185/2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT,CHAVARA DATED 05.03.2019** - **Exhibit P2 THE TRUE COPY OF ORDER DATED 22/08/2019 IN I.A.NO. 458/2019 IN O.P. (G&W) NO.185/2019 OF THE FAMILY COURT, CHAVARA** - **Exhibit P3 THE TRUE COPY OF ORDER DATED 08/11/2019 IN I.A.NO. 2018/2019 IN 0.P. (G&W) NO.185/2019 OF THE FAMILY COURT, CHAVARA** - **Exhibit P4 THE TRUE COPY OF I.A.NO. 7/2020 FILED BY THE PETITIONER IN O.P (G&W) NO.185/2019 OF THE FAMILY COURT CHAVARA DATED 11/12/2020** - **Exhibit P5 THE TRUE COPY OF OBJECTION FILED BY THE RESPONDENT IN I.A.NO. 7/2020 IN O.P.(G&W) NO. 185/2019 BEFORE THE FAMILY COURT, CHAVARA DATED 10.03.2021** - **Exhibit P6 THE TRUE COPY OF I.A.NO. 22/2021 FILED BY THE PETITIONER IN O.P.(G&W) NO.185/2019 OF THE FAMILY COURT ,CHAVARA DATED 8/12/2021** - **Exhibit P7 THE TRUE COPY OF OBJECTION FILED BY THE RESPONDENT IN I.A.NO.22/2020 IN O.P.(G&W) NO. 185/2019 BEFORE THE FAMILY COURT, CHAVARA** - **Exhibit P8 THE TRUE COPY OF INTERIM ORDER DATED 08/08/2022 IN O.P.(FC) NO. 204/2022 OF** 14 ## O.P.(FC) No.665 of 2022 ## **THIS HON'BLE COURT** **Exhibit P9 THE TRUE COPY OF JUDGMENT DATED 29/09/2022 IN 0.P.(FC) NO. 204/2022 OF THIS HON'BLE COURT** **Exhibit P10 THE TRUE COPY OF COMMON ORDER DATED 10/11/2022 IN I.A.NO. 7/2020 AND I.A.NO. 22/2020 IN 0.P.(G&W) NO. 185/2019 OF THE FAMILY COURT, CHAVARA**