Devasia @ Kunjettan & Mariyamma @ Deenamma v. Thomas Mathew @ Sibi

# **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 9[TH] DAY OF NOVEMBER 2022/18TH KARTHIKA,1944** **MAT.APPEAL NO. 336 OF 2019 AGAINST THE ORDER DATED 31.01.2019 IN O.P.(G&W) NO.202 OF 2018 OF THE FAMILY COURT, THODUPUZHA** ## **APPELLANTS/RESPONDENTS:** **1 DEVASIA @ KUNJETTAN AGED 61 YEARS,** **RESIDING AT PULLATTU HOUYSE, KALKOONTHAL KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK.** **2 MARIYAMMA @ DEENAMMA, AGED 55 YEARS, W/O.DEVASSIA, RESIDING AT PULLATTU HOUSE, KALKOONTHAL KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK.** **BY ADV MINI.V.A.** ## **RESPONDENT/PETITIONER:** **THOMAS MATHEW @ SIBI AGED 43 YEARS, S/O.MATHAI, PUNNATHANATHU HOUSE, MUNIYARA KARA, PANIKKANKUDI.P.O., KONNATHADI VILLAGE, IDUKKI TALUK-685604.** **BY ADVS. ABDUL RASAC ABDUL RAOOF PALLIPATH K.R.AVINASH** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.336 of 2019 ## **JUDGMENT** ## P.G.Ajithkumar, J. This is an appeal under Section 19(1) of the Family Courts Act, 1984. The respondents in O.P.(G&W) No.202 of 2018 of the Family Court, Thodupuzha are the appellants. As per the judgment dated 31.01.2019, the Family Court appointed the respondent herein, who is the father of the minor child Sharlet Maria Thomas @ Ann Maria, then aged 5 years, as the legal guardian and allowed him to have permanent custody of the child. The appellants were given visitation right on the third Saturday of every month between 2.00 p.m. and 5.00 p.m. in the premises of the Family Court, Thodupuzha. 2. This appeal was admitted on 22.05.2019. The respondent entered appearance through counsel. The appellant filed I.A.No.2 of 2019 seeking interim custody of the child during Onam holidays, 2019. This Court found that when the appellants were directed to hand over custody of the child to the respondent at 5.00 p.m. on 14.01.2019, the appellants 3 Mat.Appeal No.336 of 2019 did not oblige and at the intervention of the police, the child was located in an old-age home at Ratnagiri in Maharashtra. Upon holding that the appellants disobeyed the order of the Family Court on multiple occasions, this Court refused to give custody of the child to the appellants and dismissed I.A.No.2 of 2019. However, as per order dated 03.12.2021, this Court allowed the appellants to have the visitation right as ordered in the impugned judgment from December 2021 onwards. 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 4. The respondent married Jismi Devasia on 28.02.2011. Ann Maria was born in that wedlock on 07.08.2013. Smt.Jismi Devasia was afflicted with cancer and succumbed to the disease. The child was with the appellants. The respondent therefore filed O.P.(G&W) No.202 of 2018 to get the custody of the child. He claimed that he was having sufficient income and ability to look after the the child and for the sake of the welfare of the child, he has to be given 4 Mat.Appeal No.336 of 2019 custody of the child. The appellants, who are the maternal grandparents, contended that once Jismi Devasia was diagnosed with cancer, the respondent abandoned her and the child. He never had taken care of his wife or the child and met expenses in connection with her treatment. The appellants had to spend about Rs.10 lakhs for her treatment and also treatments of the child, who eventually fell ill. The appellants further contended that from birth onwards, the child has been staying with her mother and the appellants, and the child has no acquaintance with the respondent. Accordingly, it was contended that granting custody of the child to him would result in much emotional stress to the child. The 1st appellant has a permanent job and sufficient income. Appellants were imparting standard education to the child and in the said circumstances, custody of the child has to be continued with them for ensuring her welfare. 5. Before the Family Court, PW1 was examined and Exts.A1 to A9 were marked on the side of the respondent. RWs.1 and 2 were examined and Exts.B1 to B3 were marked 5 Mat.Appeal No.336 of 2019 on the side of the appellants. The Family Court after considering the evidence and on hearing both sides found that having the mother expired, the respondent, who is the natural guardian, is entitled to get the custody of the child. It was also found that the respondent has enough resources compared to the appellants and the interest of the child would be protected if she is placed in the custody of the respondentfather. 6. The appellants would assail the said findings raising the similar contentions as raised before the Family Court. It was further contended that having a POCSO case been registered against the respondent, the custody of the child should not have been entrusted with him. Further, it was contended that the evidence tendered by the appellants was not considered in the proper perspective by the Family Court. The principle that while deciding custody, welfare of the child shall be of paramount consideration, was not followed by the Family Court. 7. The contention of the respondent was that the mortal remains of Jismi Devasia was cremated in the 6 Mat.Appeal No.336 of 2019 respondent’s Church, which was to the dislike of the appellants and that had resulted in their retaining custody of the child with them. The allegations of the appellants that ever after birth, the affairs of the child or the ailing mother, were not attended to by the respondent, were not accepted by the Family Court as reasons for denying the father custody of the child. 8. It has come out in evidence that there arose a police complaint against the respondent with the allegation that he ill-treated the child. From Exts.A6 to A9, which are the copies of bail applications and various bail orders from this Court and also the oral testimony of PW1, the Family Court found that the allegation resulting in initiation of such a criminal case was not fully true. From the materials on record, we are not able to take a different view on that matter. Of course, there is an allegation that the respondent did not attend to the affairs of his wife. The evidence on record would not show that he totally neglected the wife and child, although it is seen that the appellants had attended to their affairs 7 Mat.Appeal No.336 of 2019 most of the time. The financial stability and the environmental advantages of the appellants, vis-a-vis the respondent were considered in detail by the Family Court. We do not agree that financial stability is the criteria for entrusting custody of the child; although the same also is one of the parameters. Here, no personal disqualification to the respondent for having the custody of the child is established by the appellants. Mother of the child is no more. The father, the respondent, has the ability, both financial and physical, to take care of the child. In the said circumstances, we do not find any reason to interfere with the view taken by the Family Court. 9. 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 8 Mat.Appeal No.336 of 2019 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. 10. As held by the Apex Court in **Bikram Bharua v. Salini Bhala [(2010) 4 SCC 409]** the welfare of the child is of paramount importance in matters relating to child custody and the welfare of the child has a primacy even over statutory provisions. 11. In **Sheoli Hati v. Somnath Das [(2019) 7 SCC 490],** the Apex Court held that every child has the right to proper health and education and it is the primary duty of the parents to ensure that child gets proper education. The Courts in exercise of _parens patriae_ jurisdiction have to decide such 9 Mat.Appeal No.336 of 2019 delicate questions. It has to consider the welfare of the child as of paramount importance taking into consideration other aspects of the matter including the rights of parents also. 12. In the light of the law laid down in the aforesaid decisions, the paramount consideration while deciding custody of the child shall be her welfare. What is her best interest can only balance the pendulum. As stated above, from the evidence available on record, welfare of the child can be better protected by placing her in the custody of the respondent, than entrusting with the appellants. However, having considered the fact that the child has been with the appellants till the age of 5 years, there must be an emotional bondage between them. Being the grandparents, their love and affection will also enthuse the child, especially when the mother is no more. Therefore, the visitation right granted to the appellants has to continue. Considering the proximity of their residence, the venue for visitation can be changed from the Family Court, Thodupuzha to the premises of the Court of the Judicial Magistrate First Class, Adimaly. 10 Mat.Appeal No.336 of 2019 13. Accordingly, the appeal is dismissed; however, the venue for visitation of the appellants to the child is changed. The appellants shall be allowed to interact with the child on the third Saturday of every month between 2.00 p.m. and 5 p.m. from the premises of the Judicial Magistrate of the First Class, Adimaly. In case any change to the venue is required, it is open for the appellants to approach the Family Court, Thodupuzha. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr