Aswinidev T v. Rajesh @ Rajesh R. Nair

## **`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 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 ``` ``` OP(FC) NO.623OF 2022 ``` ``` AGAINST THE ORDER DATED 28.09.2022 IN I.A.NO.1 OF 2022 IN O.P(G&W)NO.267 OF 2022 OF FAMILY COURT, ETTUMANOOR PETITIONER/RESPONDENT/RESPONDENT: ``` ``` ASWINIDEV T AGED 31 YEARS D/O.MADAVA DEV, THAMARAPALLIL HOUSE, PANCHIKKAD PANCHAYATH, KUZIMATTOM.P.O., KOTTAYAM TALUK, KOTTAYAM-686533 REP.BY POWER OF ATTORNEY HOLDER, SUDHA MADAVA DEV, AGED 57 YEARS,W/O MADAVA DEV,THAMARAPALLIL HOUSE, PANCHIKKAD PANCHAYATH,KUZIMATTOM.P.O., KOTTAYAM TALUK, KOTTAYAM, PIN -686533 ``` ``` BY ADVS. A.K.HARIDAS HAFIZ C. JAINI ``` ## **`RESPONDENT/PETITIONER/PETITIONER:`** ``` RAJESH @ RAJESH R. NAIR AGED 35 YEARS S/O.RADHAKRISHNSN NAIR HOUSE, PANACKAKUZHIYIL HOUSE KUMARAMPEROOR SOUTH MURI, VADASSERIKARRA VILLAGE, RANNI TALUK PATHANAMTHITTA PIN - 689662 ``` ``` BY ADVS. BABU PAUL MURALI MANOHAR.R(M-752) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P(FC) No.623 of 2022 ## **J U D G M E N T** ## Anil K. Narendran, J. The petitioner is the respondent in O.P.(G&W) No.267 of 2022 on the file of the Family Court, Ettumanoor, a petition filed by the respondent herein-father seeking permanent custody of the minor child by name Navaneeth.R.Nair, who is aged 5 years. In that original petition, the father filed I.A.No.1 of 2022 seeking interim custody. In that interlocutory application, the mother filed objection through her power of attorney holder. After considering the rival contentions, the Family Court passed the impugned order (Ext.P4) dated 28.09.2022, whereby that application was allowed in part. Paragraph No.6 and also the operative portion of that order reads thus; “6. It is come out, during the course of argument that the respondent had gone to Canada in connection with her education and employment. The minor son is with the parents of the respondent. It is not in dispute that the minor son is studying at Montessori school. The minor was produced before the court. He was mingling freely with the petitioner. The minor appeared to be very hale and health and in good spirit. This court also had an interaction with the minor. As stated earlier he is very happy and in very good spirit. There is nothing on record, 3 O.P(FC) No.623 of 2022 prima facie, to show that the minor son is having any kind of difficulties with his life with his maternal grandparents. As stated earlier, the minor is studying in Kottayam. It will not be advisable to disturb the education of the minor son. I am satisfied that granting the custody of the minor son to the petitioner during weekends could be the proper order, considering the welfare of the minor son. Therefore, the petition is to be allowed accordingly. In the result, - 1) The petition is allowed in part. - 2) The petitioner is granted the custody of the minor son from 10 a.m. on every Saturday till 5 p.m. on the next Sunday. - 3) The petitioner shall take the minor son from the residence of the respondent and return the child at the residence of the respondent. - 4) The petitioner is also entitled to have interaction with the minor son, via video call, on - every alternative days between 6 p.m and 7 p.m.” 2. Feeling aggrieved by Ext.P4 order dated 28.09.2022, the petitioner-mother is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 3. On 08.11.2022, when this original petition came up for admission, this Court issued notice on admission 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, Kottayam at Ettumanoor, where O.P.(G&W) No.267 of 2022 4 O.P(FC) No.623 of 2022 is pending consideration. 4. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 5. During the course of arguments, the learned counsel for the petitioner would submit that by Ext.P4 order, the respondentfather is given overnight custody of the minor child on every Saturday and the child has to be returned at the residence of the respondent-mother on Sunday. The frequent travel of the minor, who is aged only 5 years, for the purpose of interim custody by the respondent-father, will put the minor child in a difficult situation, since he had to undertake to and fro journey on every weekend. 6. On the other hand the learned counsel for the respondent-father would point out that, as noticed by the Family Court in Ext.P4 order dated 28.09.2022, when the minor child was produced before the court, he was mingling freely with the respondent-father. After interacting with the child, the court has recorded its satisfaction that the minor child is not having any kind of difficulties with his father and maternal grandparents. Therefore, no interference is warranted on Ext.P4 order of the Family Court. 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, 5 O.P(FC) No.623 of 2022 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. 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 6 O.P(FC) No.623 of 2022 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 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 **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 7 O.P(FC) No.623 of 2022 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 consideration, the court cannot act upon the suggestions of Mr. John Ekelaar in his Article. 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” 10. The decision in **Vasudha Sethi** (supra) was not regarding a post-decree scenario. But when interim custody of a child is the question, the same principle applies equally to the post- decree stage also. In view of the principles laid down in **Yashita Sahu** and **Vasudha Sethi** referred to supra, we are of the view that the wish of the child has to be taken into account before ordering interim custody of the child. 11. As noticed by the Family Court in Ext.P4 order dated 28.09.2022, when the minor child was produced before the court, he was mingling freely with the respondent-father. After interacting with the child, the Family Court has recorded its satisfaction that the minor child is not having any kind of difficulties with his father 8 O.P(FC) No.623 of 2022 and maternal grandparents. Considering the fact that, the minor child is studying in Kottayam, the Family Court found that overnight custody of the child can be granted to the respondent-father in weekends. Viewed in the light of the law laid down in the decisions referred to supra it cannot be said that the reasoning of the Family Court in Ext.P4 order for granting overnight custody of the minor child to the respondent-father, is either perverse or patently illegal. It cannot also be said that while arriving at such a finding the court has committed any material irregularity. 12. In **Jai Singh v. Municipal Corporation of Delhi** **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate - courts, as well as statutory or quasi judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the 9 O.P(FC) No.623 of 2022 Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. ## 13. In **K.V.S. Ram v. Bangalore Metropolitan Transport** **Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to 10 O.P(FC) No.623 of 2022 have interfered with the exercise of discretion by the Labour Court. 14. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 15. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that no interference is warranted on Ext.P4 order passed by the Family Court, whereby the respondent father is granted overnight custody of the minor child, for the reasons stated in that order. It would certainly be open to the petitioner-mother to file application before the Family Court, seeking any modification of the overnight custody granted to the respondent-father, if situation warrants. While taking any decision on such an application, the Family Court has to take note of the law 11 O.P(FC) No.623 of 2022 laid down in the decisions of the Apex Court referred to supra that, the Courts have to ensure that the child does not lose social, physical and psychological contact with any one of the two parents, while passing orders on the custody of a minor child. With the above direction, this original petition is disposed of, however declining interference on Ext.P4 order dated 28.09.2022 of the Family Court, Kottayam at Ettumanoor in I.A. No.1 of 2022 in OP.(G&W)No.267 of 2022. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/P.G. AJITHKUMAR JUDGE** PV/sbk/- 12 O.P(FC) No.623 of 2022 ## **`APPENDIX OF OP (FC) 623/2022`** ``` PETITIONER'S EXHIBITS ``` ``` Exhibit P1 THE TRUE COPY OF THE O.P. (G&W) 267/22 OF FAMILY COURT, EATTUMANOOR Exhibit P2 THE TRUE COPY OF THE I.A. 1/22 IN O.P. (G&W) 267/22 OF FAMILY COURT, EATTUMANOOR Exhibit P3 THE TRUE COPY OF THE OBJECTION IN I.A. 1/22 IN O.P. (G&W) 267/22 OF FAMILY COURT, EATTUMANOOR ``` ``` Exhibit P4 CERTIFIED COPY OF THE ORDER DATED 28.9.2022 IN I.A. 1/22 IN O.P. (G&W) 267/22 OF FAMILY COURT, EATTUMANOOR ``` ``` Exhibit P5 THE TRUE COPY OF THE O.P. (G&W) 1554/21 OF FAMILY COURT, EATTUMANOOR ```