Anupama M.S. v. K.P. Shyam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 OP (FC) NO. 454 OF 2022** **AGAINST THE ORDERS IN I.A.NO.1 OF 2021 IN O.P.NO.410 OF 2021 OF THE FAMILY COURT,KOZHIKODE** **PETITIONER:** **ANUPAMA M.S., AGED 31 YEARS, D/O SASIDHARAN, RESIDING AT DEVATHA, KOVOOR MLA ROAD, NELLIKKODE AMSOM, KOVOOR DESOM, P.O. CHEVAYUR, KOZHIKODE TALUK, KOZHIKODE, PIN – 673017.** **BY ADVS. R.SUDHISH M.MANJU** **RESPONDENT:** **K.P. SHYAM AGED 36 YEARS, S/O MANOHARAN, RESIDING AT BRAHMAPUTHRA, KARAKALI PARAMBU, MANNUR POST, MANNUR AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE, PIN – 673328. SRI HARIKRISHNAN - RESPONDENT** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 01.09.2022, THE COURT ON 02.09.2022 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.454 of 2022 ## **JUDGMENT** ## Ajithkumar, J. This Original Petition under Article 227 of the Constitution of India has been filed by the wife, who filed I.A.No.1 of 2021 in O.P.No.410 of 2021 before the Family Court, Kozhikode. The said Original Petition was filed by the petitioner under Section 7, 10 and 25 of the Guardian and Wards Act, 1890. I.A.No.1 of 2021 was filed by her seeking interim custody of her minor children, namely, Jaisyam, aged 8 years and Jaishnavi, aged 4 years. The Family Court passed Exts.P8 and P9 interim orders in I.A.No.1 of 2021. The petitioner seeks to set aside Exts.P8 and P9 orders and to grant custody of the children as requested in I.A.No.1 of 2021. 2. On 12.08.2022, notice on admission was directed to be served on the respondent. On 26.08.2022, both parties were directed to appear before the Court along with children today. 3. As directed, the petitioner along with her parents and respondent along with his mother and children appeared before this Court. 3 O.P.(FC) No.454 of 2022 4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 5. We have interacted with the petitioner and the respondent individually. We also interacted with the parents of the petitioner and the mother of the respondent. We interacted with the children individually in order to ascertain their wish. 6. We noticed that including O.P.No.410 of 2021, there are four litigations between the parties. Three cases were filed by the petitioner and the fourth one was filed by the husband for relief of restitution of conjugal rights. 7. The children are now residing with the respondentfather. The grievance of the petitioner is that she has not been permitted to see or interact with children and that the respondent has not been looking after the children in a proper way. The petitioner has an allegation that the respondent is a drunkard and is a person not taking matters seriously, including the affairs of the children. 4 O.P.(FC) No.454 of 2022 8. The respondent, on the other hand, would allege that the petitioner never interested in the affairs of the children and she, having maintained illicit relationships with others, is not a fit person to be in custody of the minor children. 9. 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 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. 5 O.P.(FC) No.454 of 2022 10. 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 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 6 ## O.P.(FC) No.454 of 2022 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. 11. The Apex Court again in **Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476]** held, “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. In view of the settled legal position, the welfare of the minor being the paramount 7 O.P.(FC) No.454 of 2022 consideration, we cannot act upon the suggestions of Mr.John Ekelaar in his Article. We cannot accept the submission that while applying the 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.” 12. When we have interacted, the children stated that they like to be with the father. It is an undisputed fact that the children have been with the father continuously for about three years. It is only natural to develop intimacy in them toward the father. That is the reason for their reluctance to go along with the mother. 13. The petitioner is now residing along with her parents. Considering the age of the children, it is necessary for their proper upbringing and emotional support to have close acquaintances with their mother also. Although the respondent attributed unchastity against the petitioner, there is no such pleading in the counter statement filed by him in I.A.No.1 of 2021 in O.P.No.410 of 2021, a copy of which has been made available by the learned counsel for the petitioner for our perusal. 8 O.P.(FC) No.454 of 2022 14. Exts.P8 and P9 are the interim orders. As per Ext.P8 dated 11.10.2021 visitation right has been given to the petitioner. Subsequently, as per Ext.P9 order dated 29.04.2022, the Family Court, observing that the children were not showing any intimacy to the mother and they did not want to go along with the mother, desisted from passing any orders regarding interim custody of the children. When such a matter is considered, the Family Court is expected to assign reasons and either allow or disallow the relief claimed. In that view of the matter, both Exts.P8 and P9 are not legal or proper. 15. Taking all such aspects into account, we are of the view that interim custody of the children, namely, Jaisyam and Jaishnavi, is given to the petitioner from 10.30 A.M. on 05.09.2022 till 2.00 P.M. on 07.09.2022. Custody shall be handed over and taken back from the premises of the Family Court, Kozhikode. The Family Court, Kozhikode will finally dispose of I.A.No.1 of 2021 in O.P.No.410 of 2021, bearing in mind the law laid down in the aforementioned decisions, within a period of one month from the date of production of a 9 O.P.(FC) No.454 of 2022 certified copy of this judgment. The Original Petition is disposed of accordingly. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.454 of 2022 ## **APPENDIX OF OP (FC) 454/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1 COPY OF THE ORIGINAL PETITION O.P. NO. 410 OF 2021 ON THE FILE OF THE FAMILY COURT, KOZHIKODE DATED 25.3.2021** - **Exhibit P2 COPY OF THE I.A.NO.1 OF 2021 IN O.P.NO.410 OF 2021 ON THE FILE OF THE FAMILY COURT, KOZHIKODE DATED 25.3.2021** - **Exhibit P3 PHOTOGRAPH SHOWING THE MARK ON THE PETITIONER'S FACE DUE TO CIGARETTE BURN CAUSED BY THE RESPONDENT** - **Exhibit P4 PHOTOGRAPHS SHOWING THE CLOTHES SCATTERED IN THE FRONT YARD OF THE HOUSE** - **Exhibit P5 PHOTOGRAPHS SHOWING THE CLOTHES SET ON FIRE** - **Exhibit P6 PHOTOGRAPH FROM RESPONDENT'S STATUS OF WHAT'S APP ACCOUNT SHOWING THE RESPONDENT CONSUMING ALCOHOL** - **Exhibit P7 PHOTOGRAPHS SHOWING THE CHILDREN ACTING IN TV SHOWS** - **Exhibit P8 COPY OF THE ORDER IN IA 01/2021IN OP 410/2021 IN ON THE FILE OF THE FAMILY COURT, KOZHIKODE DATED 11.10.2021** - **Exhibit P9 COPY OF THE ORDER IN IA 01/2021IN OP 410/2021 IN ON THE FILE OF THE FAMILY COURT, KOZHIKODE DATED 29.04.2022**