Ajayakumar and others v. Chinchu K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 OP (FC) NO. 684 OF 2022** **AGAINST THE ORDER DATED 16.09.2022 IN I.A.NO.1 OF 2022 IN O.P.NO.665 OF 2022 OF FAMILY COURT, MALAPPURAM** **PETITIONERS:** **1 AJAYAKUMAR AGED 45 YEARS S/O.P.SUKUMARAN, PERMANENTLY RESIDING AT ANIL NIVAS, ZION NAGAR, Z.N. 8, KONTHURUTHY, THEVARA, ERNAKULAM, PIN - 682 013 NOW RESIDING AT C/O. KRISHNANKUTTY E.P. 14/20, PATHAYAPARAMBIL, NEAR ALP SCHOOL VALAKULAM, AREEKKAL EDARIKODE, THENNALA, MALAPPURAM, KERALA, PIN - 676 501., PIN - 682013 2 P. SUKUMARAN AGED 72 YEARS S/O. NAYANDI, ANIL NIVAS, ZION NAGAR, Z.N. 8, KONTHURUTHY, THEVARA, ERNAKULAM, PIN - 682013 3 LALITHA V.P. AGED 62 YEARS W/OP. SUKUMARAN, ANIL NIVAS, ZION NAGAR, Z.N. 8, KONTHURUTHY, THEVARA, ERNAKULAM., PIN - 682013 BY ADVS. GEETHA JOB(OZHUKAYIL) TOM JOSE TANYA TOM AKHIL DAS SONAMOL K.P. ATHIRA BABU** ## **RESPONDENT:** **CHINCHU K. AGED 33 YEARS W/O.AJAYAKUMAR, KOOMULLYKALAM HOUSE, KURUPATHAL, KOLATHUR, MALAPPURAM DISTRICT, PIN - 679338 BY ADV K.RAKESH** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC)No.684 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners filed O.P.No.665 of 2022 on the file of the Family Court, Malappuram, seeking permanent custody of the minor children by name, Vaishnavy and Vinayakan, to the 1[st] petitionerfather; and grant interim custody of the minor children to the 1[st] petitioner-father on weekends and interim custody of the children to petitioners 2 and 3, being the grandparents of the minor children, during school holidays or in the alternative order production of the minor children before the Family Court, Ernakulam on alternate second Saturdays to facilitate visitation right. In that original petition, the petitioners filed I.A.No.1 of 2022, an application for interim custody. In that interlocutory application, the Family Court passed an order dated 16.09.2022. The operative portion of that order reads thus; “In the result, it is ordered that the respondent shall produce the children at court premises on every first and third Saturday of the month at 10.00 a.m. and shall be handed over to the petitioners till 1.00 p.m. On every date of visit, petitioners shall pay Rs.500/- to the respondent towards traveling expenses.” Feeling aggrieved by Ext.P4 order to the extent of declining overnight custody to the 1[st] petitioner, the petitioners are before this 3 ## O.P.(FC)No.684 of 2022 Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 2. On 15.12.2022, when this original petition came up for admission, this Court issued notice on admission to the respondent by special messenger, returnable by 19.12.2022. On 19.12.2022, the respondent entered appearance through counsel and sought time to file counter affidavit. 3. On 21.12.2022, when this original petition came up for consideration, having considered the materials on record and also the submissions made by the learned counsel on both sides, this Court directed the petitioners, respondent and also the minor children to appear before the Family Counselling Centre, under the Kerala High Court Legal Services Committee on 05.01.2023 at 11.00 a.m. On 25.01.2023, this Court perused the report of the Counsellor, Family Counselling Centre under the Kerala High Court Legal Services Committee and directed to keep the report in the safe custody of the Registrar (Judicial). 4. A counter affidavit has been filed by the respondent on 21.12.2022. The petitioners have filed a reply affidavit on 25.01.2023. 5. Heard the learned counsel for the petitioners and also the 4 ## O.P.(FC)No.684 of 2022 learned counsel for the respondent. 6. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P4 order dated 16.09.2022 of the Family Court to the extent of declining overnight custody of the minor children to the 1[st] petitioner-father. 7. Though the learned counsel for the petitioners and also the learned counsel for the respondent have raised various contentions touching the merits of the issue pending consideration before the Family Court in O.P.No.665 of 2022, we do not propose to consider those aspects in this original petition, since such contentions will have to be raised before the Family Court, at appropriate stage. 8. 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 5 ## O.P.(FC)No.684 of 2022 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 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. 9. 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 6 O.P.(FC)No.684 of 2022 keeps in touch with the other parent 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. 10. 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 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 7 ## O.P.(FC)No.684 of 2022 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. 11. Having considered the facts and circumstances, as borne out from the materials on record, in the light of the law laid down in the decisions referred to supra, and also the report of the Consellor, Family Counselling Centre, Kerala High Court Legal Services Committee, we are of the view that the visitation right granted to the 1[st] petitioner in Ext.P4 order has to be modified to certain extent, in order to ensure that the minor children keep in touch with their father and grandparents and do not loss social, physical and psychological contact with them. In such circumstances, this original petition is allowed by modifying Ext.P4 order dated 16.09.2022 of the Family Court in I.A.No.1 of 2022 in O.P.No.665 of 2022 to the extent of permitting the 1[st] petitioner-father and also the 2[nd] and 3[rd] petitionersgrandparents to have visitation right of the minor children in the premises of the Family Court, Malappuram, on first and third Saturdays of every month from 10.00 a.m. till 5.00 p.m. The respondent-mother shall handover the custody of the minor children 8 O.P.(FC)No.684 of 2022 to the petitioners, who shall have free interaction with the minor children from 10.00 a.m till 5.00 p.m. If there is any issues at the time of interaction, the petitioners can bring it to the notice of the Family Court for interference. This arrangement shall continue for a period of two months. Thereafter, the Family Court shall consider the question as to whether any modification of the said order is required, by giving overnight custody of the minor children to the 1[st] petitioner-father. Any such request made by the 1[st] petitioner shall be considered by the Family Court, taking note of the law laid down in the decisions referred to supra. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** 9 O.P.(FC)No.684 of 2022 ## **APPENDIX** **PETITIONER EXHIBITS Exhibit1 EXHIBIT P1:TRUE COPY OF O.P NO.665/2022 FILED BEFORE THE HONOURABLE FAMILY COURT, MALAPPURAM. Exhibit2 EXHIBIT P2:TRUE COPY OF I.A NO.1/2022 IN O.P NO.665/2022 Exhibit3 EXHIBIT P3:TRUE COPY OF COUNTER FILED BY THE RESPONDENT IN I.A NO.1/2022 IN O.P NO.665/2022 Exhibit4 EXHIBIT P4:CERTIFIED COPY OF THE ORDER DATED 16.09.2022 IN I.A NO.1/2022 IN O.P NO.665/2022**