Aswin Kumar A vs Anjali Anil A

## **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 3[RD] DAY OF APRIL 2023 / 13TH CHAITHRA, 1945 O.P.(FC) NO. 87 OF 2023** **AGAINST THE ORDER DATED 26.11.2022 IN I.A.NO.4 OF 2022 AND THE ORDER DATED 15.12.2022 IN O.P.(G&W) NO.244 OF 2022 ON THE FILE OF THE FAMILY COURT, ALAPPUZHA** ## **PETITIONER:** **ASWIN KUMAR AGED 32 YEARS S/O ANAND VARMA, 'GURUKRIPA', K V GARDENS, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM, PIN – 695005.** **BY ADVS. AKASH S. GIRISH KUMAR M S V.S.VARALEKSHMI DEVIKA JAYARAJ** ## **RESPONDENT:** ## **ANJALI ANIL A** **W/O ASWIN KUMAR A, 'KRISHNA KRIPA', SANADANAM WARD, MULLAYKKAL, ALAPPUZHA, PIN – 688001. BY ADV TISSY ROSE K CHERIYAN KAYYALAPARAMPIL** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 03.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.87 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner filed O.P.(G&W) No.244 of 2022 before the Family Court, Alappuzha for a decree declaring him the legal guardian of her child aged 2½ years and also to allow him permanent custody of the child. He filed I.A.No.1 of 2022 in that original petition. The Family Court, Alappuzha referred the parties for counselling. An agreement was purportedly entered into before the Counsellor. The petitioner filed I.A.No.4 of 2022 to declare that the said settlement agreement was entered into mischievously and the same does not bind the petitioner. As per the order dated 26.11.2022, Ext.P7, the Family Court dismissed I.A.No.4 of 2022. The Family Court further disposed of I.A.No.1 of 2022 in terms of the settlement in question as per Ext.P8 order dated 15.12.2022. The petitioner has filed this Original Petition under Article 227 of the Constitution of India seeking to set aside Ext.P7, order in I.A.No.4 of 2022 and Ext.P8, order in I.A.No.1 of 2022. 3 O.P.(FC) No.87 of 2023 2. On 21.02.2023, notice was directed to be served on the respondent. The respondent entered appearance through her learned counsel on receipt of notice. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. O.P.(G&W) No.244 of 2022 was filed by the petitioner on the allegation that he was not being allowed to interact with the child. The child is of tender age. It was born on 15.09.2020. Following marital discord, the petitioner and the respondent are living separate. On the appearance of the parties, the Family Court referred both parties for counselling. An agreement was purportedly entered into between the parties before the Counsellor. It is stated that regarding interim custody of the child, they have entered into such a compromise. The petitioner has filed I.A.No.4 of 2022 with the allegation that the Counsellor had exerted coercion and thus he was forced to sign such a compromise. He further contended that there was mistaken impression regarding the 4 O.P.(FC) No.87 of 2023 contents of the compromise. If the parties entered into a compromise with free will, be it before the Counsellor, Mediator, or for that matter, any person, the same can be accepted by the court and a decree be passed; provided it is lawful. Here, the petitioner has a definite contention that the terms in Ext.P2 compromise are unworkable and if he realised the contents in its proper perspective, he would not have ascribed to such a compromise. 5. The learned counsel appearing for the petitioner would submit that the dispute being with respect to the custody of the child, such a compromise ought not hae been entered into a mechanical manner, and would not have been accepted by the court. The Family Court is expected to consider all the circumstances while ordering custody of the child, especially when the child is of tender age. The learned counsel appearing for the respondent would submit that the Family Court is yet to pass an order regarding interim custody of the child and therefore, there is no reason for the petitioner to file this Original Petition. 5 O.P.(FC) No.87 of 2023 6. On going through Ext.P8 it appears that the court has affixed its seal of approval to the compromise attached to it. Therefore, it cannot be said that the said compromise remains unenforceable. On a perusal of the compromise, it is obvious that the terms are not specific or clear. The rights of the parents to interact with the child, if in dispute, has to be decided by the court, after taking into consideration as to what would be the welfare of the child. It is the settled law that while ordering custody, whether permanent or interim, there shall be every endeavour to see that the welfare of the child is protected. 7. 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 6 O.P.(FC) No.87 of 2023 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. 8. Precedence shall always be given to the welfare of the child over the rights of the parents in the matter of custody of a child. The court is expected to look into every aspect of the matter before ordering interim custody. In the compromise attached to Ext.P8 order, the terms included are not seen considered by the court keeping in mind what would be the interest of the child. In such circumstances, we are unable to sustain Exts.P7 and P8 orders. The Family Court has to consider afresh the request of the petitioner for interim custody. While doing so, the Family Court may take into account the compromise dated 11.04.2022 also. The Original Petition is accordingly disposed of. Exts.P7 and P8 are set 7 O.P.(FC) No.87 of 2023 aside. The Family Court, Alappuzha is directed to consider the request in I.A.No.1 of 2022 in O.P.(G&W) No.244 of 2022 afresh. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 8 O.P.(FC) No.87 of 2023 ## **APPENDIX OF OP (FC) 87/2023** ## **PETITIONER EXHIBITS** ## **EXHIBIT P1** **TRUE COPY OF THE O.P. (G&W) NO. 244/2022 DATED 23.02.2022 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ALAPPUZHA** **EXHIBIT P2 TRUE COPY OF THE JOINT STATEMENT EXECUTED BY THE PETITIONER AND THE RESPONDENT, IN THE PRESENCE OF THE ADDITIONAL COUNSELLOR, DATED 11.04.2022 IN I.A. 01/2022 IN OP 244/2022 ON THE FILE OF THE FAMILY COURT, ALAPPUZHA** **EXHIBIT P3 TRUE COPY OF THE FIR LODGED AT THE ALAPPUZHA NORTH POLICE STATION BEARING NUMBER 234 OF 2022, AND DATED 04.03.2022** - **EXHIBIT P4 TRUE COPY OF THE INTERIM APPLICATION, I.A. NO. 4 OF 2022, ALONG WITH THE AFFIDAVIT, IN O.P. (G&W) NO. 244/2022 PREFERRED BY THE PETITIONER BEFORE THE FAMILY COURT, ALAPPUZHA, DATED 19.07.2022** **EXHIBIT P5 TRUE COPY OF THE EX-PARTE ORDER DATED 06.08.2022 PASSED BY THE HON'BLE CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA WHILE CONSIDERING CMP NO. 2527/2022 IN MC NO. 467 OF 2022** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP(FC) NO. 610 OF 2022 DATED 01.11.2022** 9 ## O.P.(FC) No.87 of 2023 **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 26.11.2022, PASSED BY THE FAMILY COURT, ALAPPUZHA IN I.A. NO. 4 OF 2022 IN O.P. (G&W) NO. 244/2022** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 15.12.2022 BY THE FAMILY COURT, ALAPPUZHA IN I.A. NO. 1/2022 IN O.P. (G&W) NO. 244 OF 2022 EXHIBIT P9 TRUE COPY OF THE SCREENSHOT OF THE SEVERAL WHATSAPP MESSAGES MADE BY THE PETITIONER TO THE RESPONDENT'S NUMBER TAKEN ON 09.02.2023**