Dr. Akshay V. Gopal v. Leel Aswathy Ashok

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944** **OP (FC) NO. 430 OF 2022** **AGAINST THE ORDER DATED 18.05.2022 IN I.A.NO.1 OF 2021 IN O.P.(G&W) NO.1657 OF 2021 ON THE FILES OF THE FAMILY COURT, KOLLAM** ## **PETITIONER:** **DR.AKSHAY V.GOPAL, AGED 40 YEARS, S/O.LT.COL.P.D.VIPINA GOPAL, RESIDING AT AKSHAYA, VRA-43, VETTAMUKKU JUNCTION, THIRUMALA, P.O. THIRUVANANTHAPURAM DISTRICT, PIN – 695006.** **BY ADVS.** **V.N.GOPALAKRISHNAN NAIR A.CHANDRA BABU G.ARUN G.VARUN** ## **RESPONDENT:** **LEEL ASWATHY ASHOK, AGED 34 YEARS, S/O. ASOK KUMAR, RESIDING AT NANICHAN VEEDU, ADITHYA NAGAR-96, VADAKKEVILA, P.O. KOLLAM DISTRICT, PIN – 691010.** **BY ADV RAJESH VIJAYAN** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.430 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner filed this Original Petition under Article 227 of the Constitution of India challenging Ext.P3 order dated 18.05.2022 of the Family Court, Kollam in I.A.No.1 of 2021 in O.P.(G&W) No.1657 of 2021. The petitioner is the father and the respondent is the mother of a six year old female child, Amaira Akshay. The petitioner wants to set aside clauses No.(i) to (iii) in paragraph No.8 of Ext.P3 order. 2. On 01.08.2022, notice on admission was directed to be served on the respondent. After appearance of the respondent, parties were directed for mediation. In the mediation, the parties have entered into a compromise agreement with respect to the custody of the child during Christmas vacation 2022. An interim report entered into between the parties before the Mediator and signed by both of them was placed on record. However, the remaining dispute between them were not settled. 3 O.P.(FC) No.430 of 2022 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The petitioner has filed O.P.(G&W) No.1657 of 2021 for declaring him the legal guardian of the child and to get custody. Along with that original petition, the petitioner filed I.A.No.No.1 of 2021 claiming interim custody of the child. The respondent filed objection. Both sides raised serious allegations against each other. The Family Court after considering the contentions of either side, passed Ext.P3 order making arrangements for the interim custody. The operative part of Ext.P3 order is as follows:- “8. I have considered the welfare and best interest of the child. The ailments of the child is also a serious concern. Considering the above, the petition is allowed in part as follows: i) The respondent shall produce the child before the court premises on alternate Sundays and shall give him the custody of the child from 10.00 am to 1.00 pm; ii) The petitioner/father is permitted to have custody of the child for a day during the second day of Onam and 4 O.P.(FC) No.430 of 2022 for the said purpose, the child shall be produced at 10.00 am on the said day at the court premises and the child shall be returned at 10.00 am on the immediate next day. The same way shall be followed on the 25[th] of December, every year; iii) During the midsummer vacation (April & May) of the child, the child shall be given to the custody of the petitioner from 10.00 am on the second Friday of each month till 05.00 pm on the immediate next Sunday; - iv) The petitioner is directed to give all medical assistance to the child during his custody; - v) The petitioner is permitted to make video calls through social media platforms on alternate day for 10 minutes in between 7.00 pm and 08.00 pm. The respondent/ mother is also permitted to follow the same procedure while the child is in the custody of the petitioner; - vi) The parties are directed to preserve the safety and security of the child; - vii) No untoward incident shall happen during the production of child and visit of the petitioner at the court premises; - viii) This order will be in force till the disposal of the original petition.” 5. The learned counsel appearing for the petitioner would submit that denial of custody of the child to the petitioner for half of the period of Onam and Christmas 5 O.P.(FC) No.430 of 2022 holidays and summer vacation is unjust and illegal. The objections taken up by the petitioner is against clause No.(i) to (iii). 6. The learned counsel appearing for the respondent would submit that the child is aged 7 years and has some physical ailments, especially constipation, and therefore, she requires special care and special diet. 7. With reference to that aspect, the learned counsel for the petitioner would submit that the child is under treatment of a Doctor at Thiruvananthapuram and as the petitioner is residing there, it is easy for him to have consultation with the Doctor and avail medical attention to the child, if required. 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 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 6 ## O.P.(FC) No.430 of 2022 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 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 7 O.P.(FC) No.430 of 2022 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 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. 8 O.P.(FC) No.430 of 2022 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. 11. Having had anxious consideration of the facts placed by both parties before us and the law laid down by the Apex Court in the aforesaid decisions, we are of the view that clause Nos.(ii) and (iii) in Ext.P3 order require modification. 9 O.P.(FC) No.430 of 2022 Accordingly, we dispose of this Original Petition by modifying clause Nos.(ii) and (iii) of the order dated 18.05.2022 in I.A.No.1 of 2021 in O.P.(G&W) No.1657 of 2021 (Ext.P3) as follows: - Clause (ii) During Onam and Christmas holidays the petitioner will be given custody of the child for two days, i.e., second and third day of the holidays; and - Clause (iii) During the mid summer vacation, the petitioner will be given custody of the child for three days in each month, namely, Monday to Wednesday in the second week of April and May. - Subject to the said modification, Ext.P3 order will be in force. Either of the parties can approach the Family Court, Kollam, if any modification to the custody order is required owing to any change in circumstances, after a period of six months. ## **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.430 of 2022 ## **APPENDIX OF OP (FC) 430/2022** |**PETITIONER**|**EXHIBITS**|||| |---|---|---|---|---| |**EXHIBIT-P1**|**TRUE COPY OF**|**THE O.P.(G&W)NO.1657/2021**||| ||**BEFORE THE FAMILY COURT**||**KOLLAM**|**DATED**| ||**27-11-2021**|||| |**EXHIBIT-P2**|**TRUE COPY OF**|**THE I.A.NO.1/2021 IN**||**O.P.**| ||**(G&W).NO.1657/2021 BEFORE**||**THE FAMILY**|| ||**COURT KOLLAM,**|**DATED 27-11-2021**||| |**EXHIBIT-P3**|**TRUE**<br>**COPY**|**OF**<br>**THE**|**ORDER**|**IN**| ||**I.A.NO.1/2021**|**IN**||**O.P.**| ||**(G&W).NO.1657/2021 BEFORE**||**THE FAMILY**|| ||**COURT KOLLAM DATED 18-5-2022**||||