Anu Joseph and Others v. Jijo James

## **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 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944 O.P.(FC) NO. 481 OF 2021** **AGAINST THE ORDER DATED 07.07.2021 IN I.A.NO.868 OF 2019 IN O.P.(G&W) NO.168 OF 2019 OF THE FAMILY COURT, ALAPPUZHA** ## **PETITIONERS:** **1 ANU JOSEPH AGED 29 YEARS D/O. JOSEPH, KOTTAKKATTUVEEDU, AVALOOKKUNNU P.O., ASRAMAM WARD, ALAPPUZHA, ARYAD VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER MINI JOSEPH, AGED 60 YEARS, W/O. P.V. JOSEPH, KOTTAKKATTUVEEDU, AVALOOKKUNNU P.O., ASRAMAM WARD, ALAPPUZHA, ARYAD VILLAGE - 688006.** **2 P.V. JOSEPH, AGED 60 YEARS. KOTTAKKATTUVEEDU, AVALOOKKUNNU P. O., ASRAMAM WARD, ALAPPUZHA, ARYAD VILLAGE - 688006.** **3 MINI JOSEPH, AGED 60 YEARS,** **KOTTAKKATTUVEEDU, AVALOOKKUNNU P. O., ASRAMAM WARD, ALAPPUZHA, ARYAD VILLAGE - 688006.** **BY ADVS.** **K.S.HARIHARAPUTHRAN S.R.PRASANTH BHANU THILAK** 2 O.P.(FC) No.481 of 2021 ## **RESPONDENT:** **JIJO JAMES AGED 35 YEARS S/O. JAMES JOSEPH, THUNDIYIL VEEDU, NALUKODI P.O., PAYIPPADU VILLAGE, CHANGANASSERY, KOTTAYAM - 686548.** **BY ADVS. T.P.PRADEEP M.V.MINI KUMARI** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.481 of 2021 ## **JUDGMENT** ## Ajithkumar, J. The petitioners are respondents in O.P.(G&W) No.468 of 2019 on the file of the Family Court, Alappuzha. The respondent herein-father has filed the said original petition seeking custody of the minor son, Jerome Jijo James, aged now 7 years. He has filed I.A.No.868 of 2019 in that O.P. for getting interim custody of the child. As per order dated 07.07.2021 the Family Court, Alappuzha allowed that interlocutory application in part. The respondent was allowed to have custody of the child for two days in every week regulating the timings as from 10.00 a.m. on Saturday till 5.00 p.m. on the ensuing Sunday. Aggrieved by the said order, the petitioners are before us in this Original Petition filed under Article 227 of the Constitution of India. 2. On 04.10.2021, notice was ordered to be served on the respondent. Operation of the impugned order was stayed. However, the respondent was allowed to interact with the child on every Saturday from 10.00 a.m. to 2.00 p.m. in the 4 ## O.P.(FC) No.481 of 2021 premises of the Family Court, Alappuzha, and also to contact the child between 7.00 p.m. to 7.30 p.m. through voice call or video call for a period of four weeks. 3. The respondent entered appearance through counsel. 4. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 5. After interacting with the both parties and hearing the learned counsel on either side, this Court on 02.12.2021 modified the interim order as follows: “We permit the respondent-father to have interim custody of the child on every Sunday from 10.00 a.m., to 05.00 p.m. The child shall be handed over and returned through the premises of the Family Court. We also permit the father to contact the child every day between 07.00 p.m. to 07.30 p.m. through video call or voice call.” 6. Today, both parties appeared before us. The child was brought by the petitioners. We have interacted with the child and the respective parties individually. We find that there is some sort of reluctance for the child to interact with the father. It is obvious; the child has been now residing along 5 ## O.P.(FC) No.481 of 2021 with the petitioners, who are the maternal grandparents. The father gets opportunity to interact with the child only on Sundays. Of course, the respondent has an allegation that the grandparents are tutoring the child and that is the reason for the reluctance of the child to freely interact with him. We do not propose to decide the truth or falsity of the said allegation. ## 7. 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 6 ## O.P.(FC) No.481 of 2021 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. 8. 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 7 O.P.(FC) No.481 of 2021 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. 9. In the light of the law laid down by the Apex Court in the aforesaid decision, it is necessary to afford an opportunity to the father to interact with the child and that is necessary to maintain the bondage between them. Care and affection from both parents are necessary for the well-being of the child. No doubt, welfare of the child is of paramount consideration. While ordering custody of the child, due regard shall be given to the rights of the parents to interact with the child as well. In such circumstances, we are of the view that 8 ## O.P.(FC) No.481 of 2021 the order of this Court dated 02.12.2021 regarding custody of the child has to continue. However, a change regarding the day in order to suit the convenience of the parties is made. 10. This Original Petition is accordingly disposed of,- - i) the respondent-father shall be given interim custody of the child on every 1[st] and 3[rd] Saturdays, and 2[nd] and 4[th] Sundays between 10.00 a.m. and 5.00 p.m.; - ii) The child shall be handed over and returned in the presence of the Chief Ministerial Officer, Family Court, Alappuzha. Father shall be allowed to take the child outside the premises of the court, but not beyon+-d the city limits of Alappuzha during such custody; and - iii) The Family Court, Alappuzha will consider the matter after three months and decide whether any change in the said arrangement is required. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(FC) No.481 of 2021 ## **APPENDIX OF OP (FC) 481/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE OP(G&W) NO.468/2019 DATED 28.05.2019 OF THE FAMILY COURT, ALAPPUZHA.** **Exhibit P2 TRUE COPY OF THE I.A.NO.868/2019 IN OP(G&W) NO.468/2019 DATED 28.05.2019 FILED BEFORE THE FAMILY COURT, ALAPPUZHA.** **Exhibit P3 TRUE COPY OF THE OBJECTION FILED IN I.A.NO.868/2019 IN OP(G&W) NO.468/2019 DATED 06.06.2019 FILED BEFORE THE FAMILY COURT, ALAPPUZHA.** **Exhibit P4 TRUE COPY OF THE ORDER DATED 07.07.2021 IN I.A.NO.868/2019 IN OP(G&W) NO.468/2019 OF THE FAMILY COURT, ALAPPUZHA.**