Aysha C.M. v. Ali Abdul Latheef

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 O.P.(FC) NO. 15 OF 2023** **AGAINST THE ORDER DATED 28.12.2022 IN I.A.NO.5 OF 2021 IN O.P.NO.1677 OF 2021 ON THE FILES OF THE FAMILY COURT,THRISSUR** ## **PETITIONER:** **AYSHA C.M., AGED 30 YEARS, DAUGHTER OF MUHAMMED, CHALAPPURATHU, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR-680515 PRESENTLY RESIDING AT PHCC ACCOMODATION TOWER A, FLAT NO. 7, STREET-820ABDULLA BIN JAFAR, ZONE 22, DOHA, QATAR REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL NAZAR C.K, AGED 53 YEARS, SON OF SIDHICK CHULICKAL, CHULIKKAL, KHADEEJA MANZIL, KOTTAPURAM P.O., PALAKKAD, PIN – 679513.** **BY ADVS. JAGAN ABRAHAM M.GEORGE M.A.ABDUL HAKHIM JAISON ANTONY JOSEPH GEORGE M.A.AZEEZ MUSHTAQUE SEBASTIAN MATHEW DOMINIC TONY JOSEPH** 2 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **RESPONDENT:** **ALI ABDUL LATHEEF, AGED 37 YEARS, SON OF ABDUL LATHEEF, PEEDIYAKKAL HOUSE, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR, PIN – 680515.** **BY ADV D.LEEMA ROSY** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 08.03.2023, ALONG WITH Mat.Appeal.30/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 O.P. (FC) NO. 18 OF 2023** **AGAINST THE ORDER DATED 28.12.2022 IN I.A.NO.3 OF 2021 IN O.P.NO.1677 OF 2021 ON THE FILES OF THE FAMILY COURT,THRISSUR** ## **PETITIONER:** **AYSHA C.M.,** **AGED 30 YEARS, SON OF MUHAMMED, CHALAPPURATHU, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR-680515 PRESENTLY RESIDING AT PHCC ACCOMODATION TOWER A, FLAT NO. 7, STREET-820-ABDULLA BIN JAFAR, ZONE 22, DOHA, QATAR, REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL NAZAR C.K, AGED 53 YEARS, SON OF SIDHICK CHULICKAL, CHULIKKAL, KHADEEJA MANZIL, KOTTAPURAM P.O, PALAKKAD, PIN – 679513.** **BY ADVS. JAGAN ABRAHAM M.GEORGE M.A.ABDUL HAKHIM JAISON ANTONY JOSEPH GEORGE M.A.AZEEZ MUSHTAQUE SEBASTIAN MATHEW DOMINIC TONY JOSEPH** 4 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **RESPONDENT:** **ALI ABDUL LATHEEF, AGED 37 YEARS SON OF .ABDUL LATHEEF, PEEDIYAKKAL HOUSE, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR, PIN – 680515.** **BY ADV D.LEEMA ROSY** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 08.03.2023, ALONG WITH Mat.Appeal.30/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 OP (FC) NO. 19 OF 2023** **AGAINST THE ORDER DATED 28.12.2022 IN I.A.NO.2 OF 2021 IN O.P.NO.1677 OF 2021 ON THE FILES OF THE FAMILY COURT, THRISSUR** ## **PETITIONER:** **AYSHA C.M., AGED 30 YEARS, DAUGHTER OF MUHAMMED, CHALAPPURATHU, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR-680515 PRESENTLY RESIDING AT PHCC ACCOMODATION TOWER A, FLAT NO. 7, STREET 820ABDULLA BIN JAFAR, ZONE 22, DOHA, QATAR, REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL NAZAR C.K., AGED 53 YEARS, SON OF SIDHICK CHULICKAL, CHULIKKAL, KHADEEJA MANZIL, KOTTAPURAM P.O., PALAKKAD, PIN – 679513.** **BY ADVS. JAGAN ABRAHAM M.GEORGE JOSEPH GEORGE M.A.AZEEZ MUSHTAQUE SEBASTIAN MATHEW DOMINIC TONY JOSEPH M.A.ABDUL HAKHIM JAISON ANTONY** 6 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **RESPONDENT:** **ALI ABDUL LATHEEF, AGED 37 YEARS SON OF ABDUL LATHEEF, PEEDIYAKKAL HOUSE, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR, PIN – 680515.** **BY ADV D.LEEMA ROSY** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 08.03.2023, ALONG WITH Mat.Appeal.30/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 7 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 MAT.APPEAL NO. 28 OF 2023 AGAINST THE ORDER DATED 28.12.2022 IN I.A.NO.10 OF 2022 IN O.P.NO.1677 OF 2021 ON THE FILES OF THE FAMILY COURT,THRISSUR** ## **APPELLANT/RESPONDENT:** **AYSHA C.M AGED 30 YEARS** **DAUGHTER OF MUHAMMED, CHALAPPURATHU, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR-680515 PRESENTLY RESIDING AT PHCC ACCOMODATION TOWER A, FLAT NO. 7, STREET 820, ABDULLA BIN JAFAR, ZONE 22, DOHA, QATAR REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL NAZAR C.K, AGED 53 YEARS, SON OF SIDHICK CHULICKAL, CHULIKKAL, KHADEEJA MANZIL, KOTTAPURAM P.O., PALAKKAD, PIN – 679513.** **BY ADVS. JAGAN ABRAHAM M.GEORGE M.A.ABDUL HAKHIM JAISON ANTONY JOSEPH GEORGE M.A.AZEEZ MUSHTAQUE SEBASTIAN MATHEW DOMINIC TONY JOSEPH** 8 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **RESPONDENT/PETITIONER:** **ALI ABDUL LATHEEF, AGED 37 YEARS, SON OF ABDUL LATHEEF, PEEDIYAKKAL HOUSE, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR, PIN – 680515.** **BY ADV D.LEEMA ROSY** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.03.2023, ALONG WITH Mat.Appeal.30/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 9 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 MAT.APPEAL NO. 30 OF 2023 AGAINST THE ORDER DATED 28.12.2022 IN I.A.NO.6 OF 2021 IN O.P.NO.1677 OF 2021 ON THE FILES OF THE FAMILY COURT,THRISSUR** ## **APPELLANT/RESPONDENT:** **AYSHA C.M. AGED 30 YEARS, DAUGHTER OF MUHAMMED, CHALAPPURATHU, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR, PIN -680515 PRESENTLY RESIDING AT PHCC ACCOMODATION TOWER A, FLAT NO. 7, STREET - 820/ABDULLA BIN JAFAR, ZONE 22, DOHA, QATAR REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL NAZAR C.K.AGED 53 YEARS, SON OF SIDHICK CHULICKAL, CHULIKKAL, KHADEEJA MANZIL, KOTTAPURAM P.O, PALAKKAD, PIN – 679513.** **BY ADVS. JAGAN ABRAHAM M.GEORGE M.A.ABDUL HAKHIM JAISON ANTONY JOSEPH GEORGE M.A.AZEEZ MUSHTAQUE SEBASTIAN MATHEW DOMINIC TONY JOSEPH** 10 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **RESPONDENT/PETITIONER:** **ALI ABDUL LATHEEF, AGED 37 YEARS, SON OF ABDUL LATHEEF, PEEDIYAKKAL HOUSE, EDAKAZHIYOOR, CHAVAKKAD, THRISSUR, PIN – 680515.** **BY ADV D.LEEMA ROSY** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.03.2023, ALONG WITH Mat.Appeal.28/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 11 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. These Mat.Appeals and Original Petitions are filed by the respondent in O.P.No.1677 of 2021 on the file of the Family Court, Thrissur. The respondent has filed O.P.No.1677 of 2021, seeking custody of the girl child, Aaliyah Ali, aged 6½ years. The petitioner is the mother and the respondent is the father of the child. The father filed I.A.No.2 of 2021 seeking permission to interact with the child through WhatsApp, video call every day. He also filed I.A.No.3 of 2021 seeking a prohibitory injunction restraining the mother from removing the child from the jurisdiction of the Family Court. He subsequently filed I.A.No.5 of 2021 for giving him interim custody of the child. An order of temporary injunction was passed in I.A.No.3 of 2021. The Family Court also allowed the father to interact with the child through video call and allowed interim custody. Alleging that the mother has violated the order of injunction and the right of visitation, the father filed I.A.Nos.6 of 2021 and 10 of 2022 to initiate action for 12 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 prosecution against the mother. The Family Court after considering the aforesaid interlocutory applications and hearing both sides, passed common order dated 28.12.2022, the operative portion of which reads as follows:- “21. In the light of the above discussion, the above applications are disposed of as follows: I.A.2/2021 and I.A.5/2021 are allowed as follows: The petitioner is allowed to interact with the child on every day through WhatsApp video call or video conferencing between 7 p.m. and 7.30 p.m. The petitioner is allowed to get interim custody of the minor from 10 a.m. on every 2[nd] and 4[th] Saturday till 4 p.m. on the following Sunday and also during the first 5 days of Onam and Christmas vacations and also on the date of Bakrid and Eid. The petitioner is further allowed to have interim custody of the minor child on the first half of April and May during the summer vacations. I.A. 3/2021 is allowed as follows: The interim order of injunction granted on 06.09.2021 is hereby made absolute and the respondent is prohibited from removing the minor Aliyah Ali from the jurisdiction of this court until further orders. I.A.6/2021 and I.A.10/2022 are allowed as follows: Both applications are hereby allowed and the respondent is directed to produce the minor before the 13 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 court within one month failing which prosecution steps including detention in Civil Prison and attachment of properties, will be initiated against the respondent.” 2. The mother has filed O.P.(FC) No.15 of 2023 challenging the order in I.A.No.5 of 2021, O.P.(FC) No.18 of 2023 against the order in I.A.No.3 of 2021 and O.P.(FC) No.19 of 2023 against the order in I.A.No.2 of 2021. The mother also filed Mat.Appeal No.28 of 2023 against the order in I.A.No.10 of 2022 and Mat.Appeal No.30 of 2023 against the order in I.A.No.6 of 2021. 3. On 13.01.2023, when these matters came up for consideration, notice was ordered to be served on the respondent-father by the Special Messenger. He entered appearance through his learned counsel. After hearing both sides, this Court on 25.01.2023 passed the following order: “The dispute between the petitioner and the respondent is regarding custody of their girl child aged 6½ years. On the application of the respondent, I.A.No.3 of 2021, the Family Court passed an order dated 06.09.2021 restraining the petitioner from removing the child from the jurisdiction of the Family Court. That order was duly 14 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 served on the petitioner. There is an order of interim custody in I.A.No.5 of 2021, whereby visitation right and overnight custody during holidays is ordered to be given to the respondent. When the order of injunction has been violated, the respondent filed I.A.Nos.6 of 2021 and 10 of 2022 for initiating action against the petitioner which were allowed and the petitioner is directed to produce the child before the Court within one month. The petitioner challenges the said order in O.P.(FC) No.15 of 2023 and seeks an interim relief of staying operation of the said common order, Ext.P7. The learned counsel appearing for the petitioner would submit that since the petitioner along with the child is in Qatar, the direction of the Family Court to produce the child before the court within one month will result in much hardship to both the petitioner and the child. If she has to come down to India to comply with the said direction, her job in Qatar will be lost. The studies of the child will also be affected adversely. The learned counsel further would submit that the said orders to initiate action for violation of injunction are under challenge in Mat.Appeal Nos.28 of 2023 and 30 of 2023 and therefore it is only appropriate to stay the operation of the order directing the petitioner to produce the child within one month. The learned counsel appearing for the respondent, on the other hand, would submit that the petitioner after 15 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 receiving the order of injunction took the child abroad and thereby she openly flouted the order. It is not a disputed fact that the petitioner received the order of injunction before her going abroad. Therefore her act cannot be justified. I.A. Nos. 6 of 2021 and 10 of 2022 have been pending consideration of the Family Court for quite some time. So the petitioner obtained enough time to rectify her mistake of taking the child in defiance of the order of injunction. She did not do so. In such circumstances, we are of the view that prima facie it cannot be said that the Family Court went wrong in directing the petitioner to produce the child before the Family Court. The petitioner along with the child is now abroad. They are now in Qatar. When there is an order of injunction and directing the petitioner not to take the child away, it should be obeyed. If the petitioner has an objection against the order, the remedy is to challenge it and not to flout and disobey the order. Of course, whether prosecution proceedings is to be taken against the petitioner is a matter to be decided after considering all the relevant aspects. The Family Court did not take a decision on that matter as well. Instead, the petitioner is now directed to produce the child only. The whole dispute is regarding custody of the child. While deciding custody of the child, the paramount consideration shall be the welfare of the child. If an 16 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 order or direction ultimately results in stress and strain to the child, it cannot be said that the same will ensure the interest of the child. If the mother has to come all of a sudden along with the child from abroad, that may cause mental strain and stress to the child. At the same time, the petitioner cannot be allowed to openly violate the order of the Court. As per the impugned order dated 28.12.2022, the petitioner was directed to produce the child within one month. Taking into account the possible inconvenience to the child in the event of bringing it all of sudden to India, we are of the view that some more time can be granted to the petitioner to produce the child. Since appeals challenging legality of the orders in I.A.Nos.6 of 2021 and 10 of 2022 to initiate punitive action for violation of injunction are pending consideration of this Court, operation of the orders to that extent can be stayed for the time being. Accordingly; there shall be a stay against prosecution proceedings pursuant to the orders in I.A.Nos.6 of 2021 and 10 of 2022 in O.P.No.1677 of 2021, for a period of two months. The direction that the petitioner shall produce the child before the Family Court within one month from 28.12.2022 is modified and the petitioner is directed to produce the child Aliyah, aged 6½ years before the Family Court, Thrissur on or before 03.03.2023.” 17 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 4. Today, we have heard the learned counsel appearing for the appellant/petitioner (mother) and the learned counsel appearing for the respondent (father). During the course of arguments, the learned counsel appearing for the mother pointed out that she along with the child was present in Court, and therefore, we had interacted with the child and also the mother. 5. The mother is a Dentist and the father is a Doctor specialised by Pathology. Their marriage was solemnised on 07.10.2013. Child Aliyah was born on 28.04.2016. Their relationship estranged. The mother is now working in Qatar. The father is working in India. The child is now staying along with the mother in Qatar and studying in a school at Doha, Qatar. 6. The petitioner has filed I.A.No.1 of 2023 in O.P.(FC) No.18 of 2023 producing there with Exts.P11 to P17. Ext.P13 is a copy of the proceedings dated 03.03.2023 of the Family Court in G.O.P.No.445 of 2023. It is seen that in terms of the order of this Court dated 25.01.2023 the mother has 18 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 produced the child before the Family Court on 03.03.2023. The Family Court has given child in the custody of the father from 2.30 p.m. to 3.30 p.m. allowing him interaction. The parties were seen referred for counselling and the matter was adjourned to 01.04.2023. 7. The learned counsel appearing for the mother would bring to our notice Exts.P11 and P12, two email communications, which show that the leave granted to her is upto 09.03.2023. It means that she has to rejoin duty at her office in Qatar immediately thereafter. The learned counsel would submit that only on account of the extreme exigency of her employment, she left for Qatar and to safeguard the welfare of the child, she took the child along with her. It is further submitted that since her marriage was a love marriage, her parents are in loggerheads with her and now her marital relationship is in disharmony. Therefore her position is vulnerable and it is absolutely necessary to rejoin duty on 10.03.2023 itself in order to save her employment. The learned counsel also would submit that there was no intention to 19 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 disobey the order of the Family Court and that it is evident from the fact that she, in compliance to the direction of this Court, appeared on 03.03.2023 before the Family Court, Thrissur. 8. The learned counsel appearing for the father, on the other hand, would submit that despite the order of the Family Court allowing him to interact with the child and right of visitation, the mother took all kind of evasive steps with a view to ensure that the father never enjoys the right of visitation. It is also alleged that the mother is not prepared to allow the father to contact the child through video call, despite the order for the same. 9. The relationship between the father and the mother is so ruined that they knowingly or unknowingly failed to honour the rights of their child. The Apex Court in **Rosy Jacob v. Jacob A. Chakramakkal [1973 (1) SCC 840]** held that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the 20 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. ## 10. 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, 21 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 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. 11. 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 22 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 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. ## 12. 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. 23 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 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 law laid down in the aforesaid decisions, what this Court as well as the Family Court has to consider is the welfare of the child while taking a decision regarding the custody. I.A.Nos.6 of 2021 and 10 of 2022 were filed by the father for initiating prosecution against the mother for the alleged violation of the orders of the court. The Family Court as per the order dated 28.12.2022 allowed the said applications and the mother was directed to produce the minor child within one month from 28.12.2022, the date of the said order. Considering the challenge of the mother 24 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 against the said order in Mat.Appeal Nos.28 of 2023 and 30 of 2023, this Court modified the said order allowing the mother to produce the child on or before 03.03.2023. As pointed out above, the child was produced before the Family Court on 03.03.2023. In such circumstances, it is for the Family Court to decide the action to be taken in I.A.Nos.6 of 2021 and 10 of 2022. Therefore, Mat.Appeal Nos.28 of 2023 and 30 of 2023 need not be proceeded with further. 14. Now, the mother is abroad in Qatar. The child is studying in a school at Doha in Qatar. There is an order of the Family Court prohibiting the mother from removing the minor child from the jurisdiction of the Family Court, Thrissur. As stated above, whether the mother is liable to be prosecuted and imposed penalty for the violation is a matter to be decided by the Family Court, Thrissur. Since the child is studying abroad and in our interaction the child expressed her desire to stay with the mother, and the child is apparently happy to be with the mother, continuing of temporary injunction as per order in I.A.No.3 of 2021 is against the 25 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 welfare of the child. Therefore, the order dated 28.12.2022 in I.A.No.3 of 2021 is liable to be vacated with effect from today. 15. Now, as per the orders in I.A.Nos.2 of 2021 and 5 of 2021, the father has permission to interact with the child on every day through WhatsApp video call or video conferencing between 7.00 p.m. and 7.30 p.m. Interim custody of the child from 10 a.m. on every second and fourth Saturday till 4.00 p.m. on the following Sunday as also during first five days of Onam and Christmas vacations and first half of summer vacation during April and May was also allowed. 16. Considering the change in circumstances, essentially that the child is now staying along with the mother in Qatar, the direction regarding interim custody requires modification. Accordingly, we direct that hereafter the father will have right to interact with the child on every day through WhatsApp or video conferencing between 7.00 p.m. and 7.30 p.m. and the father shall be given interim custody of the child during first 15 days of school vacation of the child in Qatar, which, as submitted by the mother in court, is during July-August. 26 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 These Mat.Appeals and Original Petitions are disposed of in the aforesaid terms. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 27 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **APPENDIX OF OP (FC) 15/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT-P1 TRUE COPY OF THE ORDER DATED 06/09/21 IN I.A.NO.3/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR** - **EXHIBIT-P2 TRUE COPY OF THE ORDER DATED 15/09/21 IN TRANSFER PETITION(C)NO.472/2021 OF THE HIGH COURT, KERALA** - **EXHIBIT-P3 TRUE COPY OF THE ORDER DATED 22/07/22 IN TRANSFER PETITION(C)NO.472/2021 OF THE HIGH COURT, KERALA** - **EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 12/10/22 IN R.P.NO.922/2022 OF THE HIGH COURT, KERALA** - **EXHIBIT-P5 TRUE COPY OF THE JUDGMENT DATED 02/11/2022 IN W.P.(CRL.).NO.699/2022 OF THE HIGH COURT, KERALA** **EXHIBIT-P6 TRUE COPY OF THE ORDER DATED 06/12/2022 OF THE FAMILY COURT, THRISSUR** - **EXHIBIT-P7 TRUE COPY OF THE COMMON ORDER DATED 28/12/2022 IN I.A. NOS. 2/2021, 3/2021 & 5/2021 OF THE FAMILY COURT, THRISSUR** - **EXHIBIT-P8 TRUE COPY OF THE O.P. NO.1677/2021 FILED BY THE RESPONDENT ON THE FILES OF THE FAMILY COURT, THRISSUR.** **EXHIBIT-P9** - **TRUE COPY OF THE PETITION I.A.5/2021 DATED 03-09-2021 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT,** 28 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **THRISSUR.** **EXHIBIT-P10 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT DATED 14-112022.** **EXHIBIT-P11 THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER DATED 16-04-2022 IN FAVOUR OF ABDUL NAZAR C.K.** 29 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **APPENDIX OF OP (FC) 18/2023** **PETITIONER EXHIBITS** **EXHIBIT-P1** - **TRUE COPY OF THE ORDER DATED 06/09/21 IN I.A.NO.3/2021 IN O.P.NO.1677/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR** - **EXHIBIT-P2 TRUE COPY OF THE ORDER DATED 15/09/21 IN TRANSFER PETITION(C)NO.472/2021 OF THE HIGH COURT, KERALA** - **EXHIBIT-P3 TRUE COPY OF THE ORDER DATED 22/07/22 IN TRANSFER PETITION(C)NO.472/2021 OF THE HIGH COURT** - **EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 12/10/22 IN R.P.NO.922/2022 OF THE HIGH COURT, KERALA** - **EXHIBIT-P5 TRUE COPY OF THE JUDGMENT DATED 02/11/2022 IN W.P.(CRL.).NO.699/2022 OF THE HIGH COURT, KERALA** **EXHIBIT-P6 TRUE COPY OF THE ORDER DATED 06/12/2022 IN O.P.NO.1677/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR** - **EXHIBIT-P7 TRUE COPY OF THE COMMON ORDER DATED 28/12/2022 IN I.A. NOS. 2/2021, 3/2021 & 5/2021 IN OP.NO.1677/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR** - **EXHIBIT-P8 TRUE COPY OF O.P. NO.1677/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR** - **EXHIBIT-P9** - **TRUE COPY OF THE PETITION I.A.3/2021DATED 03-09-2021 IN O.P. NO.1677/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR.** 30 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 **EXHIBIT-P10 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT DATED 14-112022 IN O.P.NO.1677/2021 ON THE FILES OF THE COURT THRISSUR. EXHIBIT P-11 TRUE COPY OF THE LETTER/EMAIL EVIDENCING THE CASUAL LEAVE FROM 0103-2023 TO 05-03-2023. EXHIBIT P-12 TRUE COPY OF THE LETTER/EMAIL EVIDENCING THE UNPAID LEAVE FROM 0603-2023 TO 09-03-2023 EXHIBIT P-13 TRUE COPY OF THE PROCEEDINGS OF THE FAMILY COURT, THRISSUR DATED 03-032023 ON GOP NO.445/2023 EXHIBIT P-14 TRUE COPY OF THE LABORATORY REPORT DATED 13-05-2014 EXHIBIT P-15 TRUE COPY OF THE LABORATORY REPORT DATED 17-05-2014 EXHIBIT P-16 TRUE COPY OF THE LABORATORY REPORT DATED 16-08-2018 EXHIBIT P-17 TRUE COPY OF THE ONE SUCH MEDICAL LITERATURE REFERRING ABOUT HEPATITIS B BY WHO AND OTHER INTERNATIONAL JOURNALS IN MEDICINE SUCH AS NEW ENGLAND JOURNAL OF MEDICINES, JOURNAL OF PEDIATRICS** 31 O.P.(FC) No.15, 18 & 19 of 2023 and Mat.Appeal Nos.28 & 30 of 2023 ## **APPENDIX OF OP (FC) 19/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 06/09/21 IN I.A.NO.3/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR** **EXHIBIT P2** **TRUE COPY OF THE ORDER DATED 15/09/21 IN TRANSFER PETITION(C)NO.472/2021 OF THE HIGH COURT, KERALA** **EXHIBIT-P3** **TRUE COPY OF THE ORDER DATED 22/07/22 IN TRANSFER PETITION(C)NO.472/2021 OF THE HIGH COURT,** - **EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 12/10/22 IN R.P.NO.922/2022 OF THE HIGH COURT, KERALA** **EXHIBIT-P5 TRUE COPY OF THE JUDGMENT DATED 02/11/2022 IN W.P.(CRL.).NO.699/2022 OF THE HIGH COURT, KERALA** **EXHIBIT-P6** **TRUE COPY OF THE ORDER DATED 06/12/2022 OF THE FAMILY COURT, THRISSUR** **EXHIBIT-P7 TRUE COPY OF THE COMMON ORDER DATED 28/12/2022 IN I.A. NOS. 2/2021, 3/2021 & 5/2021 OF THE FAMILY COURT, THRISSUR**