Amrutha v. Balakumar

**'CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941 OP (FC).No.543 OF 2019 AGAINST THE ORDER IN I.A. NOS. 4814 & 4810 OF 2019 IN OP 1501/2016 DATED 03-09-2019 OF FAMILY COURT,ERNAKULAM ## PETITIONER/RESPONDENT: AMRUTHA AGED 28 YEARS D/O.SURESH, RESIDING AT AMRITHA VARSHINI, 49/821, ELAMAKKARA.P.O., ERNAKULAM, NOW RESIDING AT B-12, KENT NALUKETTU, VENNALA, ERNAKULAM-682 028. BY ADVS. SRI.T.ASAFALI SRI.K.ANAND SRI.M.R.NANDAKUMAR SRI.BENNY ANTONY PAREL SRI.T.M.MUHAMED HAFEES ## RESPONDENT/PETITIONER: J.BALAKUMAR, AGED 36 YEARS S/O.JAYAKUMAR, RESIDING AT FLAT NO.GB 1B, PLATINUM LOTUS, KOMATH LANE, PALARIVATTAOM, ERNAKULAM-682 024. R1 BY ADV. SMT.M.SANTHI (K/868/2011) R1 BY ADV. SRI.G.RANJU MOHAN THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 25-09-2019, THE COURT ON 29-10-2019 DELIVERED THE FOLLOWING: O.P.(FC) No. 543/2019 : 2 : ## JUDGMENT Annie John,J. The petitioner, the wife of the respondent, filed Ext.P3 MC under the Protection of Women from Domestic Violence Act, 2005 and sought for a protection order and compensation for Rs.3 crores. She has also filed a petition for return of gold ornaments. The respondent/husband has filed OP under the Guardian and Wards Act for appointing him as the guardian of the minor child and to hand over custody. The Family Court, as per Ext.P5, was pleased to order only the access of the child in the court premises. He has challenged Ext.P5 before this Court and this Court, by Ext.P6 judgment directed the court below to pass a reasoned order after ascertaining the factual aspects. In the light of Ext.P6, the court below was bound to consider the factual contentions with regard to the safety of the child, if the child is handed over to the respondent. But, later GOP No. 1501 of 2016 was dismissed for default and thereafter this Court, by a common judgment in OP(FC) Nos. 341 and 393 of 2019, remanded the matter and after condonation of delay, GOP No. 1501 of 2016 was restored. I.A. Nos. 4810 and 4184 of 2019, which were filed seeking O.P.(FC) No. 543/2019 : 3 : custody during Onam vacation and the custody pending disposal of the OP, were also allowed by the court below by the impugned order under Ext.P16. Highly aggrieved by the same, this OP(FC) has been filed. 2. The learned counsel for the petitioner contends that there is eminent threat to the safety of the child, if overnight custody is granted to the respondent, and that the issuance of Ext.P16 order is illegal and arbitrary. 3. When the matter was taken up for hearing, the learned counsel appearing for both the parties argued strenuously and according to the learned counsel for the petitioner, the order passed by the court below is illegal and unjust. He has further submitted that overnight custody of the child may be avoided and the petitioner has no objection in handing over the custody of the child during the day time. 4. After hearing the learned counsel, we understood that the grievance of the petitioner against the order passed by the Family Court below is regarding the overnight custody given to the respondent. In this connection, we have gone through the reliefs portion granted by the court below and we find that the petitioner was O.P.(FC) No. 543/2019 : 4 : directed to give custody of the child 'Avantika' to the respondent at 6 p.m on every Fridays preceding second Saturdays and the respondent shall return the child at 4.30 p.m. on the ensuing Sundays. It was also ordered that the respondent is entitled to have custody of the child for the first five days each during Onam and Christmas holidays and first half of summer vacation. Over and above, it was also ordered to the respondent to permit the child to have video call with the petitioner daily while in custody. The petitioner has also produced certain documents before us to prove that the overnight custody which was given to the respondent created lots of problems and the details of chatting and video calling were produced before this Court. We could understand that the petitioner is watching the child apprehensively in each and every moment, when the child was in the custody of the respondent, the father of the child. Even during night hours also, the petitioner was watching the child and causing mental stress and panic to her as evidenced from the chatting details. During argument, both sides conceded to the fact that the petitioner has become panic and tensed. Hence, she has called the police, sent them to the respondent's residence and created dramatic scene over there during night hours, which should have avoided by her. In this connection, it O.P.(FC) No. 543/2019 : 5 : is pertinent to extract the following decisions. ## 5. In Nil Ratan Kundu and another v. Abhijit Kundu [(2008) 9 SCC 413], it is held that “a child is not 'property' or 'commodity' and such issues should be handled with love, affection, sentiments and applying human touch to the problem.” 6. In Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others [2019 (3) KHC 167], it is held that “the welfare of the child has to be determined owing to the facts and circumstances of each case and the court cannot take a pedantic approach.” 7. In fact, the petitioner is a playback singer and the respondent is a cinematic artistic. They may have luxurious life. They are fighting each other for the custody of the ward inch by inch by lodging interlocutory applications one by one incessantly. They should realise the normal and the peaceful life of their child. The luxury will come and go; but life will be otherwise and it should be enjoyed peacefully. Children are the gift of God and guests of ours. We should remind and make aware of both sides that though minor, the child has the fundamental right to be protected by parents. If parents violates the same, the court has to safeguard the right of a child. Parents have no right to decide according to their wishes. Here, the child is O.P.(FC) No. 543/2019 : 6 : undergoing mental stress as evidenced from the chatting details. Thus, we have got a considered view that video calling should be avoided whenever the child is in the custody of the respondent or petitioner. When we analysed the facts projected by either side, we understood that the video calling permitted by the court below created lots of nuisance and it disturbed the peaceful life of the child. The child born out of the wedlock of the petitioner and the respondent, is 7 years old and she is sandwiched between the petitioner and the respondent, and her life will be spoiled by the dramatic attack by either side. We should remind them that life is not a drama. Neither the father or the mother is concerned with mental agony that may be caused to the child while fighting for the custody of the child. We remind them that, if they continue to do so, the court has power to take away the child from the custody of both parents and entrust the child with the Institutions set up for the same invoking the provisions under the Juvenile Justice Act for safeguarding proper care and safety of the child. We are concerned about the 'welfare of the child' and while dealing with the matters under the Guardian and Wards Act, the court has to consider the 'paramount welfare of the child'. 8 **.** In Kajal v. Rajesh Rana [2016 KHC 2420] it is held that “in O.P.(FC) No. 543/2019 : 7 : case of custody of minor, the dominant matter for the consideration before the court is the 'welfare' of the child, which cannot be measured by money or by physical comfort. The word ‘welfare’ must be taken in its widest sense. The moral or religious 'welfare' of the child as well as his physical well-being and the tie of affection have not to be disregarded.” 9. The criteria is to consider the welfare of the child alone and not the rights of the parents. Even the child has got her own rights, which cannot be curtailed by the parents. If the parents are not considering the welfare of the children, of course the Court can act upon it and can take a proper decision in the matter. The question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties. It would be in the interest and welfare of minor that she would be permitted to be in the custody of both the parents. 10. **In Rosy Jacob v. Jacob A** . Chakramakkal, (1973) 1 SCC 840, it is held that “the children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a O.P.(FC) No. 543/2019 : 8 : dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.” 11. In this case, there was an attempt on the part of the petitioner to make a picture in the ward's mind that she is not safe at the residence of the respondent. But, the details of chatting and video calling would reveal that the petitioner is not giving peaceful life to the child and causing mental stress during night hours, while she is in the custody of the respondent, who is none other than her father. The intention of the petitioner is to give evidence before the court that the life of ward at the residence of respondent is in danger. Such a dramatic acts of the petitioner cannot be looked into. It is pertinent to note that the child lost her peaceful life along with her parents. We do not find any reason for not giving the overnight custody to the respondent. Therefore, the order of lower court is hereby confirmed, except certain modifications. 12. Except the relief No.5, all other reliefs granted by the court below is hereby confirmed, and the relief No.5 in Ext.P16 order that the respondent would permit the child to have video call with the petitioner while in custody, is hereby set aside. We make it clear that O.P.(FC) No. 543/2019 : 9 : whenever the child is in the custody of either side, the other side is not permitted to have a video call with the child. With the above modification in the impugned order, this OP(FC) is dismissed. sd/- K. HARILAL, JUDGE. sd/- ANNIE JOHN, JUDGE. Rv O.P.(FC) No. 543/2019 : 10 : ## **APPENDIX** PETITIONER'S/S EXHIBITS: - EXHIBIT P1 TRUE COPY OF THE COMPLAINT ALONG WITH THE RECEIPT BEFORE THE SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION DATED 3.5.2016. - EXHIBIT P2 TRUE COPY OF THE MEDICAL CERTIFICATE NO.AM/CH/2019/GC226 DATED 25.4.2019 ISSUED BY DR.GLADYS CYRIL PEDIATRICIAN OF ASTER MED CITY. - EXHIBIT P3 TRUE COPY OF THE IA.NO.2762/2016 IN GOP.1501/2016 DATED 5.8.2016 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT ERNAKULAM. - EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN IA.NO.2762/2016 IN GOP.1501/2016 DATED 12.5.2017 BEFORE THE FAMILY COURT ERNAKULAM. - EXHIBIT P5 TRUE COPY OF THE ORDER IN IA.NO.2762/2016 IN OP.1501/2016 DATED 12.5.2017 OF THE FAMILY COURT ERNAKULAM.. - EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN OP(FC)NO.302/2017 OF THIS HONOURABLE COURT DATED 20.6.2017. - EXHIBIT P7 TRUE COPY OF GOP NO.731/2019 FILED BY THE RESPONDENT DATED 28.3.2019 BEFORE THE FAMILY COURT ERNAKULAM. - EXHIBIT P8 TRUE COPY OF THE IA.NO.1653/2019 IN GOP NO.731/2019 FILED BY THE RESPONDENT DATED 28.3.2019 BEFORE THE FAMILY COURT ERNAKULAM. - EXHIBIT P9 TRUE COPY OF THE I.A.NO.1655/2019 IN GOP NO.731/2019 FILED BY THE RESPONDENT DATED 28.3.2019 BEFORE THE FAMILY COURT, ERNAKULAM. - EXHIBIT P10 TRUE COPY OF THE IA.NO.2502/2019 FILED BY THE PETITIONER IN GOP NO.731/2019 DATED 2.5.2019 BEFORE THE FAMILY COURT ERNAKULAM. - EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN OP(FC)NO.393/2019 DATED 2.7.2019. O.P.(FC) No. 543/2019 : 11 : EXHIBIT P12 TRUE COPY OF THE IA.NO.4810/2019 IN GOP NO.1501/2016 DATED 27.8.2019 FILED BY THE RESPONDENT. - EXHIBIT P13 TRUE COPY OF THE COUNTER IN IA.NO.4810/2019 IN GOP NO.1501/2016 DATED 2.9.2019 FILED BY THE PETITIONER. - EXHIBIT P14 TRUE COPY OF THE IA.NO.4814/2019 IN GOP NO.1501/2016 DATED 29.8.2019 FILED BY THE RESPONDENT. - EXHIBIT P15 TRUE COPY OF THE COUNTER IN IA.NO.4814/2019 IN GOP NO.1501/2016 DATED 2.9.2019 FILED BY THE PETITIONER. - EXHIBIT P16 TRUE COPY OF THE COMMON ORDER IN IA.4810/2019 AND 4184/2019 DATED 3.9.2019. - EXHIBIT P17 TRUE COPY OF THE INTERLOCUTORY APPLICATION NO.5070/2019 IN GOPNO.1501/16 DATED 6.9.19. - EXHIBIT P18 TRUE COPY OF THE POLICE REPORT BASED ON MY COMPLAINT - EXHIBIT P19 TRUE COPY OF THE CALL DETAILS. EXHIBIT P20 TRUE COPY OF THE IA NO.5099/2019 IN GOPNO.1501/16 DATED 7.9.2019. - EXHIBIT P21 VIDEO CD EVIDENCING THE TRAUMA THAT MY DAUGHTER WENT THROUGH, WHICH HAS BEEN EXPLAINED IN ALL THE PRECEDING PARAGRAPH WHEN SHE WAS IN THE CUSTODY OF THE RESPONDENT. - EXHIBIT-P21(a) TRUE COPY OF THE MALAYALAM VERBATIM CONVERSATION OF THE PETITIONER WITH AVANTIKA, DURING VIDEO CALL. RESPONDENT'S EXHIBITS: NIL /True Copy/ PS to Judge. rv