Aswathy Nath @ Ayisha v. Jaminuddeen

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 O.P.(FC) NO. 727 OF 2022** **AGAINST THE ORDER DATED 16.11.2022 IN I.A.NO.1 OF 2022 IN O.P.(G&W) NO.1950 OF 2022 OF THE FAMILY COURT,** **THIRUVANANTHAPURAM** ## **PETITIONER:** **ASWATHY NATH @ AYISHA, AGED 33 YEARS, D/O. P.K HAREENDRA NATH, TC 21/1881, STRA 15,PANAYIL PUTHEN VEEDU ELANKOM NEDUNGADU,KARAMANA, THIRUVANANTHAPURAM, PIN – 695002.** **BY ADVS. NEETHU SOMAN FRANKLIN ARACKAL A.R** ## **RESPONDENT:** **JAMINUDEEN,** **AGED 38 YEARS, S/O YOOSUF HOUSE NO. 82, BAINS COMPOUND, NANTHANCODE, KAWADIAR, THIRUVANANTHAPURAM, NOW RESIDING AT 5D SHIRDI, PHASE 2, SOUPARNIKA APARTMENTS,MUKKOLACKAL.P.O. THIRUVANATHAPURAM, PIN – 695043.** **BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) SAMEER M NAIR** 2 O.P.(FC) No.727 of 2022 ## **GEETHU KRISHNAN SAILAKSHMI MENON** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 31.03.2023, THE COURT ON 11.04.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.727 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner filed O.P.(G&W) No.1950 of 2022 before the Family Court, Thiruvananthapuram seeking a decree appointing her the guardian of her minor child Aliya Sulthana and to give her permanent custody of the child. The respondent is the father. The petitioner has filed I.A.No.1 of 2022 seeking interim custody of the child. She filed I.A.Nos.8 and 9 of 2022 for an order directing treatment of the child under the supervision of a medical board. The Family Court as per order dated 16.11.2022 declined her request to give interim custody of the child. She was allowed to interact with the child on every Wednesday at the school where the child is studying. Her request to issue direction regarding treatment of the child under the medical board also was rejected. However, the respondent was directed to ensure treatment of the child and to submit a report before the court every month. The petitioner, aggrieved of the said order, has filed this original petition under Article 227 of the Constitution of India. 4 O.P.(FC) No.727 of 2022 2. On 04.01.2023 notice was directed to be served on the respondent. On 16.03.2023 both parties were directed to appear in person along with the child at 10.15 a.m. on 31.03.2023. In terms of that order both parties personally appeared before us. The respondent has produced the child. We have interacted with them and also the child. They were directed to appear before the Family Counselling Centre under the Kerala High Legal Services Committee at 11.00 a.m. for counselling. After counselling, they appeared before us at 3.00 p.m. We have perused the report placed on record in a sealed cover by the Family Counsellor. We interacted with both parties as well as the child again. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. In I.A.No.1 of 2022 the Family Court passed an order on 27.08.2022 (Ext.P5). The order reads,- “1. This petition is filed by the petitioner in the above O.P. for getting interim custody of the minor child named Aaliya Sulthana, aged 12 years. 5 O.P.(FC) No.727 of 2022 2. The petitioner and the respondent present. Child produced. Both sides agreed that: i) The respondent will hand over custody of the child to the petitioner on all second Saturdays and 4[th] Saturdays between 10.00 a.m. and 5.30 p.m. ii) The child shall be handed over and received back in front of the Juma Masjid, Palayam, Thiruvananthapuram. iii) The petitioner will have the right to talk with the child over telephone between7.00 p.m. and 8.00 p.m. on all days; iv) The child shall not be shifted outside the district without the permission of this court. v) The petitioner shall not take the child outside the district while the child is in her custody. These arrangements shall be bind on both parties and shall continue until further orders are passed in the original petition or in any I.As. filed in the original petition.” 5. The respondent filed O.P.(FC) No.585 of 2022 before this Court challenging the said order. The petitioner filed O.P.(FC) No.608 of 2022 challenging that order. This Court considered both those original petitions together and disposed of as per the judgment dated 28.10.2022. 6 O.P.(FC) No.727 of 2022 6. The petitioner had a serious allegation that the child was being ill-treated by the respondent and his relatives. The petitioner also submitted that the child was having serious ailments and was not being provided with sufficient medical care. Considering the submission of the petitioner that the welfare and health of the child were not being taken care of by the respondent, we have directed the Family Court Thiruvananthapuram to look into those aspects. In the judgment dated 28.10.2022 this court issued a direction to the Family Court to take necessary steps to ensure that the health condition of the child was taken care of properly and to do the needful in that matter. The respondent was directed to produce the child at 12.30 p.m. on 31.10.2022 before the Family Court and that court was directed to pass appropriate orders after interacting with the child and the parties concerned. 7. It s seen that in the meantime the petitioner filed I.A.Nos.8 and 9 of 2022. The Family Court, after interacting with the parties and the child, who appeared in person in terms with the direction of this Court disposed of those 7 O.P.(FC) No.727 of 2022 interlocutory applications as per Ext.P9 order dated 16.11.2022. From the submissions made by both parties, the Family Court noticed that the respondent had remarried. But that relationship did not last long. It is also noticed that the second wife of the respondent had ill-treated the child regarding which criminal case was initiated. Regarding the medical condition of the child, the Family Court noticed that there was requirement of treatment, but supervision of a Medical Board was unnecessary. 8. Now, the contention of the petitioner is that he was not afforded with sufficient opportunity to interact with the child, despite the order of the Family Court. She is denied access to the child even at the school. The learned counsel appearing for the petitioner further would submit that being the mother, and the child is in her adolescent stage, she should be given custody of the child, especially in the light of the present circumstances. It is further contended that there is no one to look after the affairs of the child in the house of the respondent, and therefore, leaving the child in the custody 8 O.P.(FC) No.727 of 2022 of the respondent will be detrimental to the interest and welfare of the child. 9. 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 enquiry regarding custody of children. The Apex Court explained as to how far desire of the child has to be given importance. It was held as follows: “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 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 9 O.P.(FC) No.727 of 2022 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.” (underline supplied) 10. As held by the Apex Court while considering the custody of the child, rival contentions raised by the parents hurling allegations at each other need not be gone into in detail. What shall be the welfare of the child is of paramount consideration. Considering the age of the child, care and protection of the mother is very much required. Here, the child has been with the father for quite long and therefore it may not be in the interest of the child to immediately separate her from the custody of the father and entrust to the mother. At the same time, since the father is residing along with his brother and family consisting of his wife and children, protection to the child to a certain extent is assured. There is allegation that there occurred an incident of ill-treating the 10 O.P.(FC) No.727 of 2022 child and a criminal case regarding the same. In such circumstances, it is quite necessary that the mother should get opportunity to interact with the child periodically. It is true, the child is reluctant to a certain extent to go along with the mother. That is quite natural. Since she has been with the father and members of his brother’s family, the child would have been accustomed with such circumstances. On account of long gap the child may not have an emotional bondage with the mother also. 11. In **Rohith Thammana Gowda** referred to above, the Apex court held that the desire of a child is different and distinct from the question of what would be the welfare of the child. It is explained that, wish/desire of the child can be taken into account, but precedence has to be given to the welfare of the child and decision on the custody of the child has to be taken after considering all the attending circumstances; and not on the basis of the wish of the child alone. 12. In **Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476]** the Apex Court 11 O.P.(FC) No.727 of 2022 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 of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. xx xx xx The court 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. 13. In the light of the facts and circumstances of the case and the law laid down in the aforesaid decisions, we are of the view that the order of the Family Court regarding custody of the child, Ext.P9 requires modification. Permanent custody of the child shall continue with the respondent-father. But, periodical interim custody shall be given to the petitioner. 12 O.P.(FC) No.727 of 2022 Therefore the petitioner shall be given interim custody of the child on Saturday and Sunday of second and fourth weeks in every month. Apart from ensuring her right to contact the child through audio/video call on every alternate day. 14. Hence, this Original Petition is disposed of by modifying Ext.P5 order of the Family Court dated 16.11.2022 as follows,- - i) the petitioner shall be given interim custody of the child from 10.00 a.m. on Saturday till 5.00 p.m. on the ensuing Sunday of second and fourth weeks in every month; - ii) the petitioner shall have the right to contact the child through audio/video call on every alternate day between 7.00 p.m. and 8.00 p.m.; and - iii) the direction in regard to the health and treatment of the child contained in clause No.8 in the order dated 16.11.2022 of the Family Court will continue. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 13 O.P.(FC) No.727 of 2022 ## **APPENDIX OF OP (FC) 727/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE O.P(G &W)1950/2022 DATED 22/7/2022 ON THE FILES OF FAMILY COURT, THIRUVANANTHAPURAM EXHIBIT P2 A TRUE COPY OF THE IA 1/2022 IN O.P(G &W) 1950/2022 DATED 22/7/2022 ON THE FILES OF FAMILY COURT, THIRUVANANTHAPURAM EXHIBIT P3 A TRUE COPY OF THE AFFIDAVIT DATED 15/1/2014 ENDORSED BY THE PETITIONER EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 10/5/2014 ISSUED AGAINST ONE OF THE COMPLAINTS SUBMITTED BY THE PETITIONER EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 27/8/2022 IA 1/2022 IN O.P(G &W)1950/2022 ON THE FILES OF FAMILY COURT, THIRUVANANTHAPURAM EXHIBIT P6 A TRUE COPY OF THE OP(FC) NO. 585/2022 DATED 29/9/2022 FILED BY THE RESPONDENT BEFORE THE HIGH COURT OF KERALA EXHIBIT P7 A TRUE COPY OF THE OP(FC) NO. 608/2022 DATED 27/10/2022 FILED BY THE PETITIONER BEFORE THE HIGH COURT OF KERALA, WITHOUT EXHIBITS EXHIBIT P8 A TRUE COPY OF THE COMMON JUDGMENT DATED 28/10/2022 IN OP(FC) NO. 585 & 608 OF 2022 OF THE HIGH COURT OF KERALA** 14 O.P.(FC) No.727 of 2022 ## **EXHIBIT P9** **A TRUE COPY OF THE COMMON ORDER DATED 16/11/2022 IN IA 1/2022, 8/2022, AND 9/2022 IN OP(G&W) 1950/2022 OF FAMILY COURT, THIRUVANATHAPURAM** **RESPONDENT EXHIBITS** **EXHIBIT R(C)** **THE TRUE COPY OF THE ORDER DATED 26.08.2022 IN B.A NO.6591/2022 OF THIS HON'BLE COURT** **EXHIBIT R(B)** **THE TRUE COPY OF THE PROCEEDINGS DATED 05.07.2022 IN CASE NO.795/2022 OF CHILD WELFARE COMMITTEE, THIRUVANANTHAPURAM** **EXHIBIT R(C) THE TRUE COPY OF THE ORDER DATED 26.08.2022 IN B.A.NO.6591 OF 2022 OF THE HIGH COURT.** **EXHIBIT R(D)** - **THE TRUE COPY OF THE LETTER DATED 24.03.2023 ISSUED BY THE CLASS TEACHER OF MINOR AT GOVT. UP SCHOOL, KARAKULAM**