Anoop Vijayakumar v. Rajeev S.R. & Laly Rajeev (Mat.Appeal Nos. 25 and 282 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 MAT.APPEAL NO. 25 OF 2019** **AGAINST THE JUDGMENT DATED 17.12.2018 IN O.P.(G&W) NO.426 OF 2017 ON THE FILE OF THE FAMILY COURT, KOTTAYAM APPELLANT/RESPONDENT:** **ANOOP VIJAYAKUMAR,** **AGED 28 YEARS, S/O.VIJAYAKUMAR, ARCHANA, KEERTHI NAGAR, NADATHARA.P.O., THRISSUR TALUK, THRISSUR DISTRICT - 680 751.** **BY ADV RAJIT** ## **RESPONDENTS/PETITIONERS:** - **1 RAJEEV S.R., AGED 52 YEARS, S/O. RAMAKRISHNAN NAIR, SREERANGAM, MADAPPALLY.P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT - 686 546.** **2 LALY RAJEEV W/O. RAJEEV S.R., SREERAGAM, MADAPPALLY P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT - 686 546.** **BY ADVS. SRI.SANIL JOSE SANIL JOSE** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL** **HEARING ON 30.03.2023, ALONG WITH Mat.Appeal.282/2019, THE COURT ON 10.04.2023 DELIVERED THE FOLLOWING:** 2 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945** **MAT.APPEAL NO. 282 OF 2019** **AGAINST THE ORDER DATED 17.12.2018 IN G.O.(G&W) NO.1130 OF 2017 ON THE FILE OF THE FAMILY COURT, KOTTAYAM** ## **APPELLANT/PETITIONER:** **ANOOP VIJAYAKUMAR** **AGED 28 YEARS** **S/O. VIJAYAKUMAR, 'ARCHANA', KEERTHI NAGAR, NADATHARA P.O, THRISSUR TALUK, THRISSUR DISTRICT - 680 751.** **BY ADV RAJIT** ## **RESPONDENTS/RESPONDENTS:** - **1 RAJEEV.S.R S/O. RAMAKRISHNAN NAIR, 'SREERANGAM', MADAPPALLY P.O, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT - 686 546** - **2 LALY RAJEEV** - **W/O. RAJEEV. S. R., 'SREERANGAM', MADAPPALLY P.O, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT - 686 546** **BY ADV SRI.SANIL JOSE** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 30.03.2023, ALONG WITH Mat.Appeal.25/2019, THE COURT ON 10.04.2023 DELIVERED THE FOLLOWING:** 3 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 ## **JUDGMENT/ORDER** ## Ajithkumar, J. The appellant is the father and the respondents are the maternal grandparents of Nivedya, a girl child born on 19.04.2016. The appellant filed O.P.(G&W) No.1130 of 2017 seeking permanent custody of the child. Respondents filed O.P.(G&W) No.426 of 2017 seeking to declare them the legal guardian and for permanent custody of the child. As per the common judgment dated 17.12.2018, prayer of the appellant for permanent custody of the child was declined. The respondents were declared to be the guardian of the child, allowing them to be in custody till the child attains the age of 12 years. The appellant was allowed to get interim custody of the child for which he is given liberty to file application before the Family Court at any time. The appellant is aggrieved by the said decree. Hence, he filed these appeals under Section 19(1) of the Family Courts Act, 1984 assailing the respective judgments and decrees. 4 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 2. Mat.Appeal No.25 of 2019 was admitted to file on 11.01.2019 and Mat.Appeal No.282 of 2019 was admitted to file on 11.04.2019. On receipt of notice, the respondents entered appearance through their learned counsel. Various interim orders regarding interim custody of the child were passed by this Court from time to time. The appellant was abroad at the time of birth of the child and continues abroad thereafter also. As per the order dated 15.01.2019, this Court after taking into all the attending circumstances, passed an interim order regarding the custody of the child as follows:- “Hence, the above interim application is hereby allowed. The respondents are directed to produce the minor child before the Family Court, Kottayam at Ettumanoor at 10.30 a.m. on 18th, 21st, 23rd and 25th of January, 2019. The child shall be handed over custody to the appellant on all those days till 4.00 p.m. The appellant will be entitled to take the child outside the premises of the court during the time of custody. However, he shall not take the child beyond the limits of Ettumanoor or Kottayam town.” 5 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 3. As per the subsequent orders also, interim custody of the child was given to the appellant for various periods. By the order dated 14.09.2021, the appellant was given interim custody of the child from 14.09.2021 till 20.09.2021. The respondents were allowed to contact the child through WhatsApp call on every day between 5.30 and 6.00 p.m. during the periods when the custody of the child was given to the appellant. On 23.03.2023, considering the submissions of the counsel on both sides, we directed the respondents to produce the child before the court in person. The appellant was allowed to appear before the court online. In terms of the said order, the respondents appeared in person before this Court and also produced the child on 30.03.2023. We have interacted with the child, her maternal grandfather, the appellant and also his father. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 6 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 5. The appellant married Smt.Remya on 31.05.2015. A female child was born to them on 19.04.2016. Smt.Remya committed suicide on 16.05.2016 at the residence of the respondents. The appellant was abroad at that time. Knowing the death, he came home, attended the last rites of Smt.Remya and stayed for a few days at the residence of the respondents. Leaving the child there, he left for Doha where he was working. The appellant claims that he requested the respondents to hand over custody of the child to him. But that did not happen. In due course, he filed O.P.(G&W) No.662 of 2017 before the Family Court, Thrissur, which was transferred to the Family Court, Kottayam at Ettumanoor where it was renumbered as O.P.No.1130 of 2017. The respondents filed O.P.No.426 of 2017 contending that handing over custody of the child to the appellant would be detrimental to the interest of the child. 6. The contentions set forth by the appellants before the Family Court were that he being the natural guardian is entitled to be in custody of the child and allowing the child to 7 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 be with the grandparents would not cater to the welfare of the child. He maintained that the interest of the child can be well protected if she is taken along with him to Doha where he is working and his present wife is very eager and enthusiastic to protect and safeguard the interest of the child Nivedya. 7. The respondents raised several contentions: The appellant meted out extreme cruelty and harassment, and that resulted Smt.Remya to commit suicide. The diary written by Smt.Remya revealed those facts and a crime registered against the appellant and others for offences under Secdtions 498A and 306 of the Indian Penal Code, 1860 relating to the death of Smt.Remya is pending investigation. The appellant remarried and therefore giving custody of the child to him will result in denial and derogation of right and freedom of the child. The intention of the appellant behind claiming custody of the child is to grab the properties of the respondents. It was also contended that the appellant never asked for interim custody of the child prior to or pending trial of the original petitions, which would show that his intention is oblique. 8 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 8. At the joint trial of the original petitions, the evidence was led in O.P.No.426 of 2017. The 1st respondent is PW1 and the 2nd respondent is PW2. PW3 is the sister of PW2. RW1 is the appellant and RW2 is his father. Exts.A1 to A7 and B1 to B30 were received in evidence. The Family Court considered the said evidence in detail. After appreciating the entire evidence, the Family Court found that giving custody of the child to the appellant is not to her advantage. Instead, by allowing the respondents to have custody of the child till she attains the age of 12 years, welfare of the child can be ensured. Although the appellant was given liberty to approach the Family Court for interim custody of the child, no specific directions in that regard are issued. 9. The learned counsel appearing for the appellant would submit that denying custody to the appellant, who is the natural guardian, is unjust and illegal. The Family Court gave undue importance to the allegations, that the appellant meted out cruelty and that led Smt.Remya committing suicide, in deciding the question regarding custody of the 9 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 child. It is contended that in doing so, the Family Court ignored the parameters for ensuring welfare of the child. The learned counsel further would contend that flimsy reasons like exact income of the appellant in Indian currency was not revealed, etc. have been based on to deny custody to the appellant. It is an undisputed fact that the appellant has been working abroad from the period prior to his marriage and RW2 admitted before court that the relationship between the appellant and Smt.Remya was so cordial. The learned counsel would submit that in such circumstances, the Family Court would not have denied the appellant custody of the child by giving undue importance to trivial aspects. 10. The learned counsel appearing for the respondents, on the other hand, would submit that the investigation so far done in the crime registered against the appellant revealed that there occurred harassment and torture of Smt.Remya on the part of the appellant. Now, the appellant is residing along with his present wife. In such circumstances, if the child is given in his custody, it would be quite detrimental to her interest. 10 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 11. In our interaction, the child expressed her desire to continue with her grandparents. She is not very much enthusiastic to go along with her father. The appellant stated that he would be able to protect the interest of the child by ensuring proper care and standard education. He also stated before us that his wife is very fond of nurturing the child Nivedya, and therefore, her interest would be best protected in his custody. 12. In **Rohith Thammana Gowda v. State of Karnataka & others, AIR 2022 SC 3511** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an inquiry regarding custody of children. The Apex Court explained how a desire expressed by the child has to be approached. It was held: “8. At the outset we may state 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 11 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 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. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, ‘what would be the best interest of the child concerned’. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits.” 13. The Apex Court explained that the desire or wish of a child cannot be given precedence over the welfare of the child. While it is held that the desire of a grown up child can be given more importance, a court has to take into account all the attending circumstances for deciding the custody of a child of a tender age and the wish or desire of such a child 12 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 shall be given only a secondary importance. It was also held that it is unnecessary to discuss and deal with the contentions and allegation set forth by the parties. 14. Nivedya is aged about 7 years only. Therefore, her wish or desire cannot be given more importance than the parameters for ensuring her welfare. Admittedly the appellant remarried and is now living with his present wife. They are abroad. Right or wrong, there is an allegation that on account of the cruelty meted out by the appellant, Smt.Remya committed suicide. The child, in all probabilities, might be aware of such allegations. Taking those matters into account and what we have gathered during our interaction with the appellant and the child, we are of the view that the Family Court took the correct view in the matter of giving permanent custody to the respondents. 15. The oral evidence let in by both parties goes in tandem with their respective contentions. Ext.A1 is the birth certificate of the child. Ext.A2 is the death certificate of Smt.Remya. Ext.A6 would show that the child is being 13 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 administered with vaccinations at appropriate time. The respondents produced A3 to A5 and A7 to substantiate their contentions regarding the crime registered against the appellant. Similarly, the appellant produced a bunch of documents, all are to give support to his oral testimony. Ext.B1 to B5 are the documents about his academic credentials. Ext.B6 to B9 are his salary slips. Ext.B29 and 30 show that he received pecuniary rewards from the employer. Exts.B11 to B15 were produced to show the details of his travel to and from India on different occasions. Exts.B17 to B19, B20, and B21, 22 are documents relating to the properties owned by the parents of the appellant. The facts sought to be proven using the said documents may not have much relevance. Being the father, how much salary he is drawing or what extent of properties he or his parents own cannot be a decisive factor in the matter of custody of the child. What matters is, is he able to maintain the child, meeting her requirements. When it is an admitted fact that he has been working abroad for a quite a long period, the 14 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 appellant’s financial ability to maintain a minor child need not be doubted. But a decision in the matter of custody depends on several other factors, which we have already adverted to. 16. In the peculiar facts and circumstances of this case, we are of the view that the child has to be continued in the custody of the respondents for the time being. During such period, more healthy and emotional bondage between the appellant and the child can be developed by providing the appellant periodical interim custody as has been done during the pendency of these appeals. We hold that the decrees in O.P.Nos.426 of 2017 and 1130 of 2017 require no interference, except making clarifications regarding right of interaction and periodical interim custody. Accordingly, these appeals are disposed of confirming the order of the Family Court allowing permanent custody of the child to the respondents. The appellant shall have the right to contact the child through audio-video calls every day between 7.30 and 8.00 p.m. (Indian time). Whenever the appellant arrives in India, he shall be given interim custody of 15 Mat.Appeal Nos.25 and 282 of 2019 I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 the child by the respondents for two days during weekends and five days during Onam/Christmas holidays, and 20 days during mid-summer vacation subject to a strict condition that he shall not take the child abroad. During such custody the respondents shall have right to make video/audio calls to the child between 7.30 p.m. and 8.00 p.m. on every day. I.A.No.1 of 2023 in Mat.Appeal No.25 of 2019 The appellant seeks interim custody of the child from 22.04.2023 till 31.05.2023. In terms of the decree being passed in the appeals, he is entitled to get custody for 20 days. Considering the fact that the appellant is coming down to India on 22.04.2023, we direct that the custody of the child shall be given to the appellant from 22.04.2023 till 12.05.2023. The appellant shall get and give back custody of the child at the residence of the respondents. This I.A. is allowed accordingly. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr