Aldrin T.F. v. K.K. Joseph and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** **MAT.APPEAL NO. 539 OF 2022** **AGAINST THE JUDGMENT DATED 30.10.2021 IN O.P.NO.1189 OF 2016 ON THE FILE OF THE FAMILY COURT,ERNAKULAM** **APPELLANT/PETITIONER:** **ALDRIN T.F. AGED 52 YEARS, S/O.T.J.FRANCIS, THERUVIPARAMPIL, KUMBALANGHI P.O., ERNAKULAM - 682 007.** **BY ADVS. K.A.JALEEL C.Y.VINOD KUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 K.K.JOSEPH AGED 85 YEARS S/O.CHACKO JOSEPH, KURUPPATH HOUSE, OLANAD, VARAPPUZHA P.O., ERNAKULAM - 683 517. 2 PHILO JOSEPH AGED 80 YEARS W/O.K.K.JOSEPH, KURUPPATH HOUSE, OLANAD, VARAPPUZHA P.O., ERNAKULAM - 683 517.** **3 K.J.JOB AGED 54 YEARS S/O.K.K.JOSEPH, KURUPPATH HOUSE, OLANAD, VARAPPUZHA P.O., ERNAKULAM - 683 517.** **BY ADVS. SANTHAN V.NAIR CHRISTEENA P GEORGE** 2 Mat.Appeal No.539 of 2022 **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 23.12.2022, THE COURT ON 05.01.2023 DELIVERED THE FOLLOWING:** 3 Mat.Appeal No.539 of 2022 ## **JUDGMENT** ## **P.G. Ajithkumar, J.** The petitioner in O.P.No.1189 of 2016 on the file of the Family Court, Ernakulam is the appellant. He is aggrieved by the judgment of the Family Court dated 30.10.2021, by which his prayer for appointing him as the guardian and to give them custody of the children was declined. He challenges correctness and legality of the said judgment in this appeal filed under Section 19(1) of the Family Courts Act, 1984. 2. On 02.08.2022, this appeal was admitted. The respondents entered appearance through their learned counsel. The petitioner has filed I.A.No.3 of 2022 seeking interim custody of the children, named Edwin Aldrin, aged 17 years and Ann Mary Aldrin, aged 16 years, during the ensuing Christmas holidays from 24.12.2022 till 31.12.2022. On 22.12.2022, both parties were directed to be present along with the minor children before this Court. In terms of that order, the petitioner and the 3[rd] respondent along with the children appeared before this Court. We have interacted with the children and also the appellant. The appellant was allowed to be in the company of the children for 4 Mat.Appeal No.539 of 2022 half an hour. After such interaction, we talked to them and ascertained their desire. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 4. The respondents are the maternal grand parents and uncle of the children. The children were born on 26.07.2005 and 30.10.2006. The respondents filed O.P.No.1164 of 2016 seeking to allow the custody of the children and declaring them the guardian. The appellant thereafter filed O.P.No.1189 of 2016 seeking to appoint him the guardian of the children and to get their permanent custody. Along with the said original petitions, M.C.No.92 of 2018 which was filed by the children through the 3[rd] respondent was also tried jointly. Those cases were disposed of by a common judgment dated 30.10.2021. While O.P.No.1164 of 2016 was allowed and the respondents were declared and appointed the guardian of the children and allowing them to retain custody, O.P.No.1189 of 2016 was dismissed. The appellant was, however, allowed to have the company of the children on the first and last Saturdays every month from 10.00 a.m. till 3.00 p.m. from the premises of the Family Court, Ernakulam. The appellant was also allowed to make video or 5 Mat.Appeal No.539 of 2022 audio calls to the children between 6.00 p.m. and 6.30 p.m. on every Monday. 5. The grievance of the appellant is that being the natural guardian of the children, in the absence of mother who died on 13.06.2016, the Family Court should not have denied him his right to be in custody of the children. The learned counsel for the appellant would submit that the respondents by prevailing upon the will of the children have been retaining their custody and because of that reason, the children are hesitant to stay with the appellant; not even freely interacting with him. It is also submitted that intention of the 3[rd] respondent, who is the maternal uncle, is to grab the property and money of the minors and in that view of the matter, it is essential to allow the appellant to have custody of the children. The appellant would allege that respondents No. 1 and 2, the grandparents are not in a position to look after the affairs of the children due to their old age and the 3[rd] respondent being a drunkard, there is nobody to take care of the affairs of the children. The appellant accordingly would claim that for the welfare of the children, their custody has to be entrusted with him, but the Family Court failed to appreciate the said factual situations in its proper perspective. 6 Mat.Appeal No.539 of 2022 6. The learned counsel appearing for the respondents would submit that never the appellant has shown parental care towards the children and that is why they are reluctant to go along with him. In the absence of the mother, the children have so far been grown up by the respondents giving them parental care. The children are very much affectionate to the respondents, on the other hand, there is no emotional bondage between the appellant and children. 7. During the trial of the case, the appellant as well as the 3[rd] respondent were examined as PW1 and RW1 respectively. Exts.A1 to A12 and B1 to B10 were marked. The learned counsel would point out that after considering the said evidence in detail, the Family Court refused to allow the appellant to have permanent custody of the children. It is submitted by the learned counsel for the respondents that there is no reason to interfere with the findings of the Family Court. 8. Going by the averments of the appellant itself, it is seen that the marital disharmony developed between the appellant and Smt. Betty as early as in 2009. They have been living separate and the children were with the mother all through out. From the evidence on record, it is seen that there were no 7 Mat.Appeal No.539 of 2022 serious attempts from the part of the appellant to develop an emotional attachment with the children during this period. It is true that the appellant has been working abroad while the children are in Kerala pursuing their studies at Koonammavu. Therefore, the opportunity for interaction was less. At the same time, estrangement between the appellant and Smt. Betty also contributed to such separation of the father and the children. 9. Be that as it may, the children who were living with the mother till her death and after that along with the respondents, during our interaction, took a firm stand that they did not want to go along with the father/appellant. Even after the interaction for half an hour, the children struck their stand. The children are now 17 and 16 years of age. They are studying in Plus-2 and Plus-1 classes. They are intelligent enough to understand things. Being minors, their decisions and desires may not be that rational as that of an aged or an adult person. However, coming to the welfare of the children and their interest, which are of paramount consideration while deciding the question of their custody, their preference has to be given due importance. 10. In **Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840]** the Apex Court reminded the Courts about the need 8 Mat.Appeal No.539 of 2022 to have an attitudinal change in the matter relating custody of children. It was held that the children are not mere chattels, nor are they mere playthings for their parents. The absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be valuable members of the society and the guardian Court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of the welfare of the minor children and the rights of their respective parents over 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 9 Mat.Appeal No.539 of 2022 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. 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 10 Mat.Appeal No.539 of 2022 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. (underline supplied) 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 to have the company of both parents. Such orders are not passed only for protecting the rights of the parents. (underline supplied) 11 Mat.Appeal No.539 of 2022 14. In the light of the principle of law laid down in the aforesaid decisions, custody of the children can be decided keeping in mind their welfare and interest alone. The appellant being the father has every right to have custody of the children, but such custody cannot be allowed if the same is not in their best interest. Thus on re-appreciating the evidence on record and taking into account the preferential interest of the children, we are of the view that there is no reason to interfere with the findings of the Family Court in the matter of the custody of the children. 15. As per the impugned judgment, the appellant was allowed to have company of the children on the first and last Saturdays in every month from 10:00 a.m., to 03:00 p.m., but his claim to have permanent custody of the children was declined. When the children do not want to go in custody of the appellant, we are of the view that I.A.No.3 of 2022 is also liable to be dismissed. Accordingly, the appeal as well as I.A.No.3 of 2022 are dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr/Dxy