Bralvi v. Indu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** **Mat.Appeal.No.192 OF 2019** **AGAINST THE ORDER IN GOP 486/2017 DATED 02-07-2018 OF FAMILY COURT,THRISSUR** ## **APPELLANT/PETITIONER:** **BRALVI AGED 48 YEARS S/O. LATE SREEDHARAN, CHANAYIL HOUSE, THIRUTHIKKAD DESOM, PORKKULAM VILLAGE, THALAPPILLY TALUK-650506.** **BY ADV. SRI.RAJIT** ## **RESPONDENT/RESPONDENT:** **INDU AGED 37 YEARS D/O. RAMANATHAN, VALIYAPARAMBIL HOUSE, NATTIKA P.O,CHAVAKKAD TALUK-680515.** **R1 BY ADV. SRI.P.K.MANOMOHANAN** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWIN:** **Mat.Appeal.No.192 OF 2019** **2** ## **JUDGMENT** ## **C.S.DIAS, J.** The appellant was the petitioner in O.P. No.486 of 2017 on the file of the Family Court, Thrissur. The respondent in this appeal was the respondent in the original petition. 2. The petitioner had filed the above original petition seeking an order for the permanent custody of his minor son 'Rohan'. The parties are for the sake of convenience referred to as per the litigate status in the Family Court as 'petitioner' and ' respondent'. 3. The case of the petitioner in the original petition, shorn of exhaustive pleadings, is as follows: The petitioner was married to the respondent on 4.1.2009. The minor child 'Rohan' was born in their wedlock on 18.11.2009. The **Mat.Appeal.No.192 OF 2019** **3** petitioner was employed in Gulf. However, he developed heart problems and was compelled to return to India. After he returned, the respondent conceived and the child was born. The respondent did not properly look after to the welfare of the child. The respondent was a stubborn and arrogant woman. She was in a habit of frequently going to her parental home. On 9.11.2011, the respondent went to her parental home and did not return. The petitioner filed O.P. 2023/2012, seeking for the permanent custody of the child. In the conciliation proceedings held before the Family Court, the disputes between the parties were settled and they resumed cohabitation. The child was admitted to Good Shepherd School, Kunnamkulam. Within a short span of time, the respondent again began her old behaviour. She quaralled with the petitioner on trivial issues. She again started leaving the matrimonial home ## **Mat.Appeal.No.192 OF 2019** **4** without the permission or consent of the petitioner. On 3.12.2014, the respondent left the matrimonial home for good by taking the child and all her belongings. The petitioner used to meet the child at school. However, since 1.3.2017, the petitioner has been restrained from meeting the child at school. Hence the petitioner sought for the permanent custody of the child. 4. The original petition was resisted by the respondent, who filed a written objection, denying the allegations in the original petition. She admitted the marriage as well as the paternity of the child. According to her, the petitioner misappropriated her gold ornaments for his business purposes. After she conceived, the petitioner behaved rudely towards her. He never showed any sort of love or affection towards her. The petitioner suffered a heart attack. He was **Mat.Appeal.No.192 OF 2019** **5** treated at Amrutha Hospital, Ernakulam. Though the Doctors advised him to give up alcoholism and smoking, he continued his vices. The petitioner is living with his brother, who is a bachelor, and a practicing lawyer. The petitioner's brother supported the petitioner in ill-treating the respondent. It is admitted that in the conciliation proceedings in O.P.2023/2012, a rapprochement was effected. The petitioner has done many heinous acts in the presence of the child, and that the child is mortally scared of the petitioner. The child was admitted in school at the respondent's initiative. The entire expenses for the education of the child was met by the respondent's parents. The petitioner's brother insulted the respondent by calling her a prostitute. The respondent is unable to reside in the matrimonial home due to the atrocities and brutal acts committed by the petitioner and his brother. The petitioner and his ## **Mat.Appeal.No.192 OF 2019** ## **6** brother leave home in the morning and return only by evening. There is no one at their residence to look after to the welfare of the child. The respondent's parents are residing at her parental home. Even though the respondent goes for work, her parents take care of the child. Hence she prayed that the original petition be dismissed. 5. The petitioner was examined as PW1. The respondent and a witness were examined as RW1 and RW2 and Exts.B1 to B6 were marked through them. 6. The Family Court by the impugned order dated 2.7.2018 rejected the petitioner's claim for permanent custody of the child. Nevertheless, the Family Court granted the petitioner interim custody of the child from 10 a.m. on all second Satudays till 5 p.m on the ensuing Sunday. **Mat.Appeal.No.192 OF 2019** **7** 7. It is aggrieved by the impugned judgment that this Appeal is filed. 8. During the pendency of the appeal, the appellant had filed I.A No.3/2019 seeking interim custody of the child during the Onam school vacation. This Court by its order dated 3.9.2019 granted the petitioner interim custody of the child from 07.09.2019 till 12.09.2019. The petitioner has presently filed I.A No.1/2020 seeking interim custody of the child from 1.4.2020 to 24.5.2020, during the school summer vacation of the child. 9. When the above application was taken up for hearing, as the lis in the appeal and the application is identical, i.e. the appellant's right to have custody of the child, we with the consent of the counsel for both the parties, decided to hear and dispose of the appeal itself. ## **Mat.Appeal.No.192 OF 2019** ## **8** 10. Heard the learned counsel for the appellant and the learned counsel for the respondent. 11. We have re-appreciated the pleadings and evidence on record. 12. From the evidence on record, we find that there is no one at the residence of the petitioner to look after to the permanent custody of the child, especially when the petitioner goes for his employment. His parents are no more. His unmarried brother is a practicing lawyer. On the other hand, we find that the respondent is residing with her parents who are leading retired lives. The child is presently 10 years of age. He is pursuing his studies in a CBSE school. The respondent has produced Exts.B3 to B5 certificates which substantiate that the child has excelled in his studies. The petitioner does not have a case that ## **Mat.Appeal.No.192 OF 2019** ## **9** the respondent is disqualified in any manner in having the permanent custody of the child. The main grievance of the petitioner pertains to the recalcitrant attitude of the respondent towards him, as his wife. The marital relationship, as per the records, is still subsisting. 13. Thus, the sole question to be considered in this appeal is whether the Family Court was justified in granting the permanent custody of the child to the respondent with visitation rights of the petitioner. 14. The Hon'ble Supreme Court in **Rosy Jacob v. Jacob A.Chakramakkal** [(1973) 1 SCC 840] observed as follows: “ 15. The children are not mere chattels: nor are they play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social ## **Mat.Appeal.No.192 OF 2019** ## **10** conditions, yielded to the consideration 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”. 15. In **Anjali Kapoor v. Rajiv Baijal** [(2009) 7 SCC 322] the Supreme Court held that, in a battle for custody of a child, Courts should see what would best serve the welfare and interest of the child, which is the sole and predominant criteria and not the legal rights of the warring parents. 16. In a recent decision in **Yashita Sahu v. State of Rajasthan and others** [2020 SCC Online SC 50] the Supreme Court observed as follows: “18. The child is the victim in custody battles. In this fight of egos and increasing **Mat.Appeal.No.192 OF 2019** **11** acrimonious battles and litigations between two spouses, our experience shows that 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 the custody of the child. The court must therefore be very vary of what is said by each of the spouses. 19. A child, especially a child of tender years requires the love, affection, company, 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, 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 the 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 **Mat.Appeal.No.192 OF 2019** **12** 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 the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights. 20. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the 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. 21. Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the **Mat.Appeal.No.192 OF 2019** **13** parent who is denied custody. 22. In addition to 'Visitation Rights', 'Contact Rights' are also important for development of the child specially in cases where both parents live in different states or countries. The concept of contact rights in the modern age would be contact by telephone, e-mail or in fact, we feel the best system of contact, if available between the parties should be video calling. With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her - child for 5 10 minutes everyday. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if we cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each. (emphasis supplied) **Mat.Appeal.No.192 OF 2019** **14** 17. After appreciating the pleadings and evidence on record, we find that the child is of tender age and is school going. The respondent and her parents are available at home to look after to the paramount welfare and best interest of the child. There is no incriminating material disqualifying the respondent from having the permanent custody of the child. The Family Court has rightly balanced the rights of the parents and the welfare of the child, by granting the permanent custody of the child to the respondent with visitation rights to the appellant. We are satisfied that the paramount welfare and best interest of the child would be secured if he is permitted to be in the permanent custody of the respondent, and reserving the visitation rights of the appellant. 18. Considering the parameters in **Yashita Sahu** (supra), we are inclined to modify the visitation rights of the appellant, then what has ## **Mat.Appeal.No.192 OF 2019** **15** been granted by the Family Court, so that the child can be in the company of both parents and have their love and affection. 19. Accordingly, we allow this appeal in part by modifying the order of the Family Court with regard to the visitation rights of the appellant over the child. Accordingly, we order that the appellant shall have; visitation rights of the child from 10.00 a.m. on second Saturday of every month till 5.00 p.m. on the ensuing Sunday; interim custody of the child for five days during the child's school holidays during Onam and Christmas vacations; and interim custody of the child for ten days in April and May during the child's school summer vacation. The venue for the exchange of the interim custody of the child shall be at the Family Court, Thrissur. In addition to the above visitation rights, the appellant is granted contact rights with the child. The appellant shall be permitted by the respondent, to ## **Mat.Appeal.No.192 OF 2019** ## **16** talk to the child over mobile phone on every Wednesday and Sunday for 5-10 minutes between 7.00 p.m and 9.00 p.m. Needless to state, in case of any change of circumstances, the parties are at to move the Court to seek a liberty Family modification of the visitation rights ordered in this judgment. This Mat.Appeal is disposed of accordingly. Sd/- ## **K.HARILAL** **JUDGE** Sd/- **C.S.DIAS** > ma/17.3.2020 /True copy/ **JUDGE** P.S to Judge **Mat.Appeal.No.192 OF 2019** **17**