Civiya T.R. and others v. Vijesh C.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY,THE 10[TH] DAY OF NOVEMBER 2022/19TH KARTHIKA,1944 O.P.(FC) NO. 619 OF 2022** **AGAINST THE ORDER DATED 11.10.2022 IN I.A.NOS.3 AND 4 OF 2022 IN O.P.NO.1125 OF 2022 OF THE FAMILY COURT,** ## **THRISSUR** ## **PETITIONERS:** **1 CIVIYA T.R., AGED 35 YEARS, DAUGHTER OF THATTAKATH RAPPAYI, PUTHUR VILLAGE, MAROTTICHAL POST AND DESOM, THRISSUR TALUK AND DISTRICT PIN- 680 014, REPRESENTED BY THE POWER OF ATTORNEY HOLDER AND FATHER RAPPAYI, AGED 63 YEARS, SON OF THATTAKATH THOMAS, PUTHUR VILLAGE, MAROTTICHAL POST AND DESOM, THRISSUR TALUK AND DISTRICT, PIN – 680014.** - **2 RAPPAYI, AGED 63 YEARS, SON OF THATTAKATH THOMAS, PUTHUR VILLAGE, MAROTTICHAL POST AND DESOM, THRISSUR TALUK AND DISTRICT, PIN – 680014.** - **3 THRESYAMMA, AGED 61 YEARS, WIFE OF THATTAKATH RAPPAYI, PUTHUR VILLAGE, MAROTTICHAL POST AND DESOM, THRISSUR TALUK AND DISTRICT, PIN – 680014.** **BY ADVS. SHIBIN K.F. SEBY JOSEPH** 2 O.P.(FC) No.619 of 2022 ## **RESPONDENT:** **VIJESH C.V., AGED 38 YEARS, SON OF CHALLISSERY VARGHESE, PUTHUR VILLAGE, IRAVIMANGALAM DESOM, NADATHARA POST, THRISSUR TALUK AND DISTRICT, PIN – 680751.** **BY ADVS.** **FRANKLIN ARACKAL A.R NIDHIN RAJ VETTIKKADAN JIPSON ANTONY** **THIS O.P.(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.619 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. Ext.P1 is a common order rendered by the Family Court, Thrissur in I.A.Nos.3 and 4 of 2022 in O.P.No.1125 of 2022. I.A.No.3 of 2022 was dismissed and I.A.No.4 of 2022 was allowed. The petitioners challenge the legality of the said order in this Original Petition filed under Article 227 of the Constitution of India. 2. The respondent entered appearance through his learned counsel when this matter was taken for consideration on 07.11.2022. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. 4. O.P.No.1125 of 2022 was filed by the petitioners. The 1st petitioner is the mother of minor child Iva Maria, aged 5 years. The 1[st] petitioner is abroad, working in Israel. The respondent is the father of the child. He also has been working abroad, but now available in station. The child has 4 O.P.(FC) No.619 of 2022 been with petitioners 2 and 3, who are the parents of the 1st petitioner. The petitioners filed O.P.No.1125 of 2022, a copy of which is Ext.P2 before the Family Court, seeking to appoint the 1st petitioner as guardian and to allow to be in custody of the minor. They also seek a decree of injunction restraining the respondent from taking away the child from their custody. They have filed I.A.No.3 of 2022 in the O.P. seeking a temporary injunction in the said terms. The respondent filed I.A.No.4 of 2022 seeking interim custody of the child. 5. The Family Court considered both the interlocutory applications together. The Judge, Family Court, had interacted with the child and the parties. It was observed that the child had acquaintance with the respondent, though not very close to him. Wishes of the child also was ascertained. The child preferred to be with the mother, although she was moving comfortably with the father. Considering all the matters, including the wishes of the child, the Family Court dismissed I.A.No.3 of 2022 and on allowing I.A.No.4 of 2022, the respondent was allowed interim custody of the child twice in a 5 ## O.P.(FC) No.619 of 2022 month. The respondent was accordingly permitted to have custody of the child from 10.00 a.m. on the first and third Saturdays till 5.00 p.m. on the following Sunday every month. Further, the respondent was allowed to have custody of the child during the first half of Onam and Christmas vacations and during the first ten days of April and May. He was also allowed to contact the minor through video call on every Monday and Friday from 7.00 p.m. To 7.30 p.m. 6. The petitioners challenge the said order mainly on the ground that the respondent did not pay maintenance to the child and that the child has no much acquaintance with him. There is nothing on record to show that the petitioners have claimed maintenance of the child from the respondent. Needless to say that the father has every responsibility to maintain his child and meeting every expense to be incurred in connection with the education as also other necessities of the child. In the absence of anything on record to show that there occurred refusal to pay or meet such expenses by the respondent, it cannot be 6 ## O.P.(FC) No.619 of 2022 said that he is disentitled to have interaction with the child. 7. The mother admittedly is now in Israel. The child is living with the petitioners 2 and 3, who are the maternal grandparents. If the respondent, father is also abroad, there is no possibility for him to have the interim custody of the child. In such a situation, the child has to be with the grandparents. But when the father is available in station and there is no apparent reason disentitling him to have interaction with the child, there is no merit in the contention of the petitioners that he should not be allowed interim custody. Since he was employed abroad, it is only natural that there has not been close acquaintance between the daughter and father. The rival contentions would show that there is an attempt on the part of the petitioners to deny the respondent to have interaction with the child as well. 8. 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 7 ## O.P.(FC) No.619 of 2022 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 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. 9. 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 8 ## O.P.(FC) No.619 of 2022 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 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 9 O.P.(FC) No.619 of 2022 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. 10. 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 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. 10 O.P.(FC) No.619 of 2022 11. The respondent is now available in station. When he is available and mother is abroad, it is quite appropriate to allow the child to live along with the father, atleast intermittently, which is quite necessary to develop the emotional bondage between them. Parental care is absolutely necessary for a child of tender age. When father is available in station, the child shall not be denied that advantage. In the light of the principles laid down by the Apex Court in the aforesaid decisions, the order of the Family Court allowing the father to have weekend custody of the child and also custody during the holidays, cannot be said to be incorrect. 12. In the circumstances, we find no reason to interfere with the impugned order. However, considering the submissions made by the learned counsel appearing on either side, we are of the view that a slight modification to the order of the interim custody is necessary. The timing is changed to the effect that the respondent shall get custody of the child on every Saturday from 10.30 a.m. till 3.00 p.m. instead of first and third Saturdays and Sundays; as long as he is available in 11 O.P.(FC) No.619 of 2022 station. Other conditions in the order of the Family Court will continue. The Original Petition is disposed of accordingly. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) No.619 of 2022 ## **APPENDIX OF OP (FC) 619/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 THE CERTIFIED COPY OF THE COMMON ORDER, DATED 11-10-2022, IN IA NO.03/2022 & IA NO.04/2022 IN OP NO. 1125/2022 ON THE FILES OF THE FAMILY COURT, THRISSUR** **EXHIBIT P2 A TRUE COPY OF THE ORIGINAL PETITION NO. 1125/2022 FILED BY THE PETITIONERS HEREIN BEFORE THE HONOURABLE FAMILY COURT, THRISSUR DATED 04-05-2022** **EXHIBIT P3 A TRUE COPY OF IA NO.03/2022 DATED 04-05-2022** **EXHIBIT P4 A TRUE COPY OF THE IA NO.4/2022 IN GOP NO. 1125/2022 DATED NIL EXHIBIT P5 THE COUNTER FILED BY THE PETITIONERS HEREIN TO EXHIBIT P4 PETITION DATED 06-08-2022**