Bino Mathew v. Siji Thomas

# **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 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 O.P.(FC) NO. 609 OF 2022** **AGAINST THE ORDER DATED 06.08.2022 IN I.A.NO.2 OF 2022 IN O.P.(G&W) NO.321 OF 2022 ON THE FILES OF THE FAMILY COURT, PALA** **PETITIONER:** **BINO MATHEW AGED 46 YEARS, S/O MATHEW, CHENGANKAL HOUSE,RAMAPURAM.P.O, RAMAPURAM VILLAGE, KOTTAYAM DISTRICT- 686 572.** **BY ADVS. M.B.SANDEEP K.P.SREEJA AMAL STANLY** **RESPONDENT:** **SIJI THOMAS AGED 37 YEARS, D/O THOMAS KUNNAPPALLIYIL HOUSE,UZHAVOOR.P.O, UZHAVOOR VILLAGE, KURAVILANGAD, KOTTAYAM- 686634.** **BY ADV.LITHIN THOMAS** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 19.01.2023, THE COURT ON 07.02.2023 DELIVERED THE FOLLOWING:** 2 ## O.P.(FC) No.609 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner in O.P.(G&W) No.321 of 2022 on the file of the Family Court, Pala has filed this Original Petition under Article 227 of the Constitution of India. He seeks to set aside Ext.P7 order dated 06.08.2022 in I.A.No.2 of 2022 in O.P. (G&W) No.321 of 2022. 2. On 03.11.2022, notice on admission was ordered to be served on the respondent. Despite service of notice, the respondent did not appear in court initially. As per impugned order of the Family Court dated 06.08.2022, the petitioner was allowed to get interim custody of the child from the authorities of St.Philomina's Boarding School, Elanji from 10.00 a.m. on 10.12.2022 till 5.00 p.m. on 11.12.2022. On 07.12.2022, we have allowed the petitioner to retain the child in custody on 12.12.2022 also for the purpose of producing the child before this Court. In terms of that order, the petitioner personally appeared before the Court along with the child on 12.12.2022. The respondent entered appearance 3 O.P.(FC) No.609 of 2022 through her learned counsel also. We have interacted with the child and the petitioner individually. 3. Mother of the child is in Qatar. The child is studying in Std.III in the aforementioned school. She is staying in the boarding of that school. 4. The respondent has filed a counter affidavit. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6. The petitioner was earlier working in Kuwait. He is now available at home. There were matrimonial disputes between the petitioner and the respondent and therefore they were living separately. While so, the respondent got a job in Qatar. At that time the custody of the child was entrusted with the sister of the petitioner. The respondent filed O.P.No.762 of 2018 before the Family Court, Pala and a decree of dissolution of marriage between the petitioner and the respondent was obtained. The child continued to be in the care and protection of the petitioner, however, the respondent when reached the 4 O.P.(FC) No.609 of 2022 native place, used to take the child along with her from the custody of the petitioner. Since she did not return the child as agreed, the petitioner filed O.P.No.321 of 2022 claiming permanent custody of the child. He filed I.A.No.2 of 2022 in that O.P. seeking interim custody of the child. Ext.P4 is a copy of the said interlocutory application. 7. Meanwhile, the respondent filed O.P.No.331 of 2022 before the Family Court, Pala seeking an injunction restraining the petitioner from forcibly taking away the child from her custody. She filed I.A.No.1 of 2022 for a temporary injunction in that O.P. The Family Court recorded evidence of PW1, the petitioner. After considering the evidence and hearing both sides, the Family Court disposed of I.A.No.2 of 2022 in O.P.(G&W) No.321 of 2022 and I.A.No.1 of 2022 in I.A.No.331 of 2022 as per Ext.P7 common order. 8. The operative part of the Ext.P7 order reads as follows:- “In view of my above findings, IA 01/2022 and IA 02/2022 are to be partly allowed. (1) The child's admission had given as cost of 5 O.P.(FC) No.609 of 2022 Rs.1,00,000/- (Rupees One lakh only) at Boarding therefore the child should continue her education in that school and not change the school until further order. (2) The respondent/father is allowed to get an interim custody of the minor child, Cera Elizabath Bino aged 8 years, on every second Saturday of the month from 10 a.m to next day (Sunday) 5 p.m from Boarding. For that the father of the minor child can receive the child either from the Authority of St.Philomina's Boarding School or from the Grand father of the minor child. (3) The parties are allowed to get an interim custody of the minor child, during the period of child's vacation Onam, Christmas and Summer vacation, the first half days to father and other half days to mother. Child's custody in other holidays can be decided by the parties for their convenience. The father of the minor child and the parents of the mother of the minor child are permitted to make Mobile call with the minor between 7 pm and 9 pm, while the child is in the Boarding, for that the Boarding Authority should permit the same. (4) In case of violation of the order by the respondent for any reason regarding handing over the interim custody of the minor child, the respondent's right for custody of the minor as per the judgment will stand forfeited.” 6 O.P.(FC) No.609 of 2022 9. The learned counsel appearing for the petitioner would submit that when the mother is abroad and the father is available in station, it is absolutely unjust and against the interest of the child to lodge the child in a boarding. At the beginning of this academic year, the respondent mother was available in station and got custody of the child from the petitioner. It is alleged that the child was admitted without his consent in St.Philomina's Boarding School, Elanji. The learned counsel would further submit that the respondent left for Qatar, leaving the child in the boarding school, with the sole objective of denying the petitioner custody of the child. 10. The learned counsel appearing for the respondent, on the other hand, would submit that the petitioner used to harass the child both physically and mentally and therefore entrusting the custody of child with him is totally prejudicial to the welfare of the child. 11. The Family Court, Pala had considered the rival contentions and the oral testimony of PW1 in detail in the impugned order. It is certainly appropriate that a child stays 7 O.P.(FC) No.609 of 2022 along with its parents. If one of the parents alone is available and not incompetent or disabled, he/she has to be allowed to be in custody of the child. All the same, while deciding custody of the child, the paramount consideration shall be its welfare. ## 12. 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, more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and 8 O.P.(FC) No.609 of 2022 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. 13. 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 keeps in touch with the other parent 9 O.P.(FC) No.609 of 2022 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. 14. 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 10 O.P.(FC) No.609 of 2022 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. 15. The respondent mother is abroad. The petitioner father is available in station. The school, where the child is studying and the boarding are about 15 kms. away from the residence of the petitioner. The child was enrolled in the school only in this academic year. During the interaction, the child told us that she was not unhappy in staying in the boarding of St.Philomina's Boarding School. As per Ext.P7 order, the petitioner is allowed interim custody of the child on every second Saturday and Sunday and also during vacation periods. We reckon the fact that a change of the school in the middle of the academic year, may affect her studies adversely. We are not of the view that since a handsome amount was 11 O.P.(FC) No.609 of 2022 paid in connection with the admission of the child, she has to be retained in the same school. But considering other circumstances, essentially the possible adversities if the school is changed now, we are of the view that the arrangements as per Ext.P7 order have to continue. 16. O.P.Nos.321 of 2022 and 331 of 2022 are pending consideration of the Family Court, Pala. In the light of the rival contentions, and the fact that the respondent-mother is abroad, it is appropriate to take a decision regarding permanent custody of the child without delay. Therefore, while dismissing this Original Petition, the Family Court, Pala is directed to dispose of O.P.Nos.321 of 2022 and 331 of 2022 within three months from the date of production of a certified copy of this judgment. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) No.609 of 2022 ## **APPENDIX OF OP (FC) 609/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE O.P CARD OF CARDINAL SPECIALITY HOSPITAL,KOTTAYAM DATED 7.04.2015** - **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE HEAD MISTRESS ,ST.ANTONY'S L.P.SCHOOL,VENGALLOR DATED 6.05.2022** - **EXHIBIT P3 TRUE COPY OF THE ORIGINAL PETITION NO. 321/2022 ON THE FILES OF FAMILY COURT,PALA DATED 6.05.2022** - **EXHIBITP4 TRUE COPY OF THE I.A 2/2022 ON THE FILES OF FAMILY COURT,PALA** - **EXHIBIT P5 TRUE COPY OF O.P 331/2022 ON THE FILES OF FAMILY COURT ,PALA** - **EXHIBIT P6 TRUE COPY OF I.A 1/2022 IN O.P 331/2022 ON THE FILES OF FAMILY COURT,PALA DATED 10.05.2022** - **EXHIBIT P7 TRUE COPY OF ETH COMMON ORDER OF THE FAMILY COURT,PALA DATED 6.08.2022 IN 1/2022 IN O.P 331/2022 & I.A 2/2022 IN O.P 321/2022** - **RESPONDENT EXHIBITS** - **EXHIBIT R1(A) THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE JUDICIAL FIRST-CLASS MAGISTRATE COURT, PALA AS M.C 15/2022 DATED 29.04.2022** - **EXHIBIT R1(B) THE TRUE COPY OF THE ORDER IN C.MP. NO.773/2022 IN M.C NO. 15/2022 PASSED BY THE JUDICIAL FIRST-CLASS MAGISTRATE COURT, PALA DATED 04.05.2022**