Aswathy S. v. Manoj

## **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 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 OP (FC) NO. 613 OF 2022** **AGAINST THE ORDER/JUDGMENTOPGW 387/2019 OF FAMILY COURT, CHAVARA PETITIONER:** **ASWATHY . S AGED 33 YEARS D/O VIJAYAN, FROM ASWATHY BHAVANAM, NEENDAKARA MURI, KARUNAGAPPALLY NOW RESIDING AT ASWATHY BHAVANAM, PUTHUKKAD, CHAVARA, KOLLAM DISTRICT PIN 691 583, PIN - 691583** **BY ADVS. A.JANI(KOLLAM) NISA FASIL(KOLLAM)** ## **RESPONDENT:** **MANOJ AGED 39 YEARS S/O MURALEEDHARAN, RESIDING AT MAHESH BHAVANAM, KOLLAKA MURI, VADAKKUMTHALA P.O, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT PIN 690 536 FROM KUNNAKKAL PUTHEN VEEDU, KOLLAKA MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT, PIN - 690536 BY ADVS. V.PREMCHAND SURYA MOHAN P.(K/001967/2019) FATHIMA SHALU S.(K/2636/2021)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC)No.613 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent-mother in O.P.(G&W)No.387 of 2019 on the file of the Family Court, Chavara, which is one filed by the respondent herein-father, seeking permanent custody of the minor child by name, Kashinad. In that original petition, the respondent herein-father filed I.A.No.876 of 2019, seeking interim custody of the minor child. That application was allowed to certain extent by Ext.P6 order dated 06.05.2022. The said order reads thus; “Heard. This is a petition filed by the father of the ward for interim custody. Ward is now in the custody of the mother. The Hon'ble High Court as well as the Supreme Court has time and again held that the parents of the minor ward has the right for contact and visitation rights. Hence, interim custody of the minor ward is given to the petitioner from all second Saturday at 11 a.m till 4 p.m., on the succeeding Sunday. The petitioner is directed to receive the child from the respondent on second Saturday at 11 a.m and return the ward to the respondent at 4 p.m., on the succeeding Sunday before the court officer of this Court. Therefore, the petition is allowed to that extent.” Feeling aggrieved by Ext.P6 order, the petitioner-mother is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P6 order. 3 ## O.P.(FC)No.613 of 2022 2. On 01.11.2022, when this original petition came up for admission, this Court issued notice to the respondent. The learned counsel for the petitioner was permitted to take out notice to the respondent through his counsel before the Family Court, Chavara, where O.P.(G&W)No.387 of 2019 is pending consideration. This Court granted an interim order staying the operation of Ext.P6 order dated 06.05.2022 in I.A.No.876 of 2019 in O.P.(GW)No.387 of 2019, for a period of one month. The said interim order, which was extended from time to time, is still in force. 3. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 4. 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 4 ## O.P.(FC)No.613 of 2022 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. 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 5 ## O.P.(FC)No.613 of 2022 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 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. 6. In **Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476]** the Apex Court 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 6 ## O.P.(FC)No.613 of 2022 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. 7. A reading of Ext.P6 order would not show that the Family Court, before granting overnight custody of the minor child to the respondent-father, had interacted with the child. The learned counsel on both sides raised various contentions touching the merits of the issue, which is pending consideration before the Family Court in O.P. (GW)No.387 of 2019. We do not propose to consider those contentions, since the original petition, which is of the year 2019, is still pending consideration before the Family Court, Chavara. 8. In such circumstances, this original petition is allowed by setting aside Ext.P6 order of the Family Court, Chavara, for the aforesaid reason, and by directing the Family Court to pass fresh orders in I.A.No.876 of 2019 in O.P.(G&W)No.387 of 2019, after considering the rival contentions and taking note of the law laid down in the decisions referred to supra. 9. Both parties shall appear before the Family Court, 7 ## O.P.(FC)No.613 of 2022 Chavara, on **13.02.2023** . The Family Court shall have interaction with the minor child and thereafter, pass appropriate orders on I.A.No.876 of 2019, as expeditiously as possible, at any rate, within a period of two weeks. The Family Court shall finally dispose of O.P.(G&W)No.387 of 2019, as expeditiously as possible, at any rate, within a further period of three months. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** 8 O.P.(FC)No.613 of 2022 ## **APPENDIX** |**PETITIONER EXHIBITS**|| |---|---| |**Exhibit P1**|**TRUE COPY OF JUDGEMENT DATED 14/02/2020 IN**| ||**M.C.NO 168/2018 BEFORE THE FAMILY COURT,**| ||**CHAVARA**| |**Exhibit P2**|**TRUE COPY OF O.P.NO 935/2019 BEFORE THE**| ||**FAMILY COURT CHAVARA**| |**Exhibit P3**|**TRUE COPY OF O.P (GW) 387/2019 BEFORE THE**| ||**FAMILY COURT, CHAVARA**| |**Exhibit P4**|**TRUE COPY OF I.A.NO 876/2019 IN OP (GW)**| ||**387/2019 BEFORE THE FAMILY COURT, CHAVARA**| |**Exhibit P5**|**TRUE COPY OF OBJECTION FILED BY THE**| ||**PETITIONER IN OP (GW) 387/2019 BEFORE THE**| ||**FAMILY COURT, CHAVARA**| |**Exhibit P6**|**TRUE COPY OF ORDER DATED06/05/2022 OP (GW)**| ||**387/2019 BEFORE THE FAMILY COURT, CHAVARA**| |**Exhibit P7**|**TRUE COPY OF LETTER ISSUED BY THE SCHOOL**| ||**COUNSELLOR TO THE DISTRICT LEGAL SERVICE**| ||**AUTHORITY ON 15/07/2022**| |**Exhibit P8**|**TRUE COPY OF REPORT FILED BY THYE CHILD**| ||**PROTECTION OFFICER, WOMEN AND CHILD**| ||**WELFARE DEPARTMENT ON 08/08/2022**| |**Exhibit P9**|**TRUE COPY OF I.A.NO 1/2022 IN O.P (GW)**| ||**387/2019 BEFORE THE FAMILY COURT, CHAVARA**|