Dr. Shafeed T.P. v. Dr. Raihana Rasheed Kunjumoideen and others

O.P.(FC).No. 632 of 2022 1 # **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 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 OP (FC) NO. 632 OF 2022** **AGAINST THE ORDER/JUDGMENT IN GOP 227/2022 OF FAMILY COURT,** ## **KOTTAYAM** ## **PETITIONER/S:** DR. SHAFEED T.P. REPRESENTED BY POWER OF ATTORNEY HOLDER- ASIF AGED 43 YEARS AGED 43 YEARS, SON OF SRI. T.P.MARAKKAR THADATHIL PARAMBIL HOUSE, KAKKATTIRI P.O. THRITHALA, PATTAMBI, PALAKKAD DISTRICT KERALA, PIN - 679534, PRESENTLY RESIDING AT DEPARTMENT OF ORTHOPEDICS KARUNA MEDICAL COLLEGE, VILAYODI P.O. CHITTOOR, PALAKKAD DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER ASIF, AGED 32 YEARS SON OF SRI. ABOOBACKER THADATHIL PARAMBIL, KAKKATTIRI MALA P.O., PATTITHARA, PALAKKAD KERALA, PIN - 679534 , PIN - 678103 BY ADVS. LUKE J CHIRAYIL M.G.SREEJITH ## **RESPONDENT/S:** 1 DR. RAIHANA RASHEED KUNJUMOIDEEN AGED 36 YEARS DAUGHTER OF SRI. V.K. RASHEED HEERA, THAZHATHANGADI P.O., KOTTAYAM TALUK KOTTAYAM VILLAGE, KOTTAYAM DISTRICT KERALA , PIN - 686005 2 ISHAN MOHAMMED SHAFEED AGED 11 YEARS SON OF DR. SHAFEED T.P. HEERA, THAZHATHANGADI P.O., O.P.(FC).No. 632 of 2022 2 KOTTAYAM TALUK KOTTAYAM VILLAGE, KOTTAYAM DISTRICT KERALA REPRESENTED BY NATURAL GUARDIAN - DR. RAIHANA RASHEED KUNJUMOIDEEN , PIN - 686005 3 FAISAN MUHAMMED SHAFEED AGED 4 YEARS SON OF DR. SHAFEED T.P., HEERA, THAZHATHANGADI P.O., KOTTAYAM TALUK KOTTAYAM VILLAGE, KOTTAYAM DISTRICT KERALA REPRESENTED BY NATURAL GUARDIAN - DR. RAIHANA RASHEED KUNJUMOIDEEN , PIN - 686005 ## **OTHER PRESENT:** SRI M.PREMCHAND- FOR RESPONDENT THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(FC).No. 632 of 2022 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent in G.O.P.No.227 of 2022 on the file of the Family Court, Kottayam, which is one filed by the 1[st] respondent herein seeking permanent custody of minor children, namely, Ishan Muhammed Shafeed, aged 11½ years and Faizan Muhammed Shafeed, aged 4½ years old, born out of their wedlock. In that Original Petition, the 1[st] respondent filed I.A.No.3 of 2022 seeking permission to take the minor children abroad. The petitioner filed counter, opposing the relief sought for in that interlocutory application. After considering the rival contentions, the Family Court passed Ext.P5 order dated 01.08.2022. The reasoning of the Family Court, as contained in paragraph 5 of that order and also the operative portion of that order reads thus; 'The Original Petition is filed for declaring the petitioner as the guardian of the minor children. An affidavit is filed by the petitioner to the effect that she had got an offer for a period of three years as psychiatry fellowship Doctor at St.Necholas Hospital New Castle and she has to leave the country immediately. Admittedly the children are with the petitioner even now. There is also no dispute as to the fact that the petitioner had got an offer as claimed by her. What the respondent is worried is the loss of his opportunity to interact with the children. That can be taken care of by giving appropriate direction. The paramount consideration is welfare of the children. They are very much happy in the company of O.P.(FC).No. 632 of 2022 4 the mother. The children were produced before the court on more than one occasions. They are close to the petitioner. One cannot be found fault with the petitioner for trying to explore better professional opportunities. I am satisfied that the children can be permitted to be taken abroad by the petitioner. Therefore, the petition is allowed as follows; In the result: 1. The petition is allowed. 2. The petitioner is permitted to take the minor children Ishan Muhammad Shafeed and Faizan Muhammad Shafeed abroad. Before taking the children abroad the petitioner shall produce the copies of the document to show that the petitioner is having an employment abroad. 3. The respondent is permitted to have interaction with the children via video call on every alternative days. 4. The respondent also shall have the custody of the children during vacations, ie., summer, Christmas and Onam when they come over to India from abroad.'' 2. Feeling aggrieved, the petitioner is before this Court in this Original Petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 3. On 11.02.2022, when this original petition came up for admission, notice on admission was ordered to the respondent. The petitioner was permitted to take out notice to the respondent through their counsel before the Family Court, Kottayam at Ettumanoor, were O.P.No.227 of 2022 is pending consideration. 4. Heard the learned counsel for the petitioner and the O.P.(FC).No. 632 of 2022 5 learned counsel for the respondents. 5. The interlocutory application filed by the 1[st] respondent herein-mother, as I.A.No.3 of 2022 in G.O.P.No.227 of 2022, was one seeking permission to take the minor children abroad. Admittedly, the children are with the mother, who got an offer for Psychiatry fellowship at St.Necholas Hospital, Newcastle for a period of three years. The said fact was not disputed by the petitioner herein-father before the Family Court. By Ext.P5 order dated 01.08.2022, the Family Court permitted the mother to take the minor children abroad, subject to the conditions stipulated in that order. A reading of Ext.P5 order would make it explicitly clear that after considering the facts and circumstances of the case, the Family Court recorded its satisfaction that the children can be permitted to be taken abroad by the 1[st] respondent herein-mother. 6. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 7. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both O.P.(FC).No. 632 of 2022 6 administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 8. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. O.P.(FC).No. 632 of 2022 7 9. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles o f natural justice have been flouted. 10. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 11. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the O.P.(FC).No. 632 of 2022 8 findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 12. Having considered the submissions made by the learned counsel on both sides, we do not find that the reasoning of the Family Court in Ext.P5 order is either perverse or patently illegal. It cannot also be said that, while arriving at such a conclusion, the Family Court has committed any materials irregularity, warranting interference, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 13. 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 O.P.(FC).No. 632 of 2022 9 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. 14. 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 O.P.(FC).No. 632 of 2022 10 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. 15. 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 O.P.(FC).No. 632 of 2022 11 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. 16. In **Rohith Thammana Gowda v. State of Karnataka & others [(2022) SCC Online SC 937],** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an enquiry regarding custody of children. The Apex Court after referring to the law laid down in **Nithya Anand Raghawan v. State** **(NCT of Delhi) & another [(2017) 8 SCC 454]** explained the parameters to be reckoned with while deciding the question of interim custody in a case where there occurs change in the place of residence of children. 17. In Ext.P5 order, while permitting the 1[st] respondent herein-mother to take the minor children abroad, the petitioner herein-father is permitted to have interaction with the children via video call on every alternative days. The father shall also have custody of children during vacations, when they come over to India. Viewed in the light of the law laid down in the decisions referred to supra, we find no illegality or irregularity in the directions contained in Ext.P5 order. 18. The learned counsel for the petitioner would also raise a contention that the relief granted in Ext.P5 order is beyond the scope of I.A.No.3 of 2022, in which permission was sought for only for a O.P.(FC).No. 632 of 2022 12 period of three years. We find absolutely no merit in the said contention raised by the learned counsel for the petitioner, since the permission granted by the Family Court in Ext.P5 order is based on the offer the 1[st] respondent-mother got for a period of three years’ Psychiatric fellowship at St.Necholas Hospital, Newcastle. It is well settled that the orders passed by the Family Court granting interim custody of minor children are subject to modification by the said court, if circumstances so demand, during the pendency of the original petition. In the above circumstances, we find no reason to interfere with Ext.P5 order dated 01.08.2022 of the Family Court, Kottayam at Ettumanoor. The challenge made in this original petition against Ext.P5 order fails; however, the original petition is disposed of subject to the observation contained hereinbefore as to the nature of the said order. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** Dxy O.P.(FC).No. 632 of 2022 13 ## **APPENDIX OF OP (FC) 632/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PETITION DATED 10.02.2022 NUMBERED AS G.O.P. NO. 227 OF 2022 ON THE FILES OF THE HON'BLE FAMILY COURT, KOTTAYAM AT ETTUMANOOR Exhibit P2 THE TRUE COPY OF THE PETITION DATED 10.02.2022 IN I.A. NO. 3 OF 2022 IN G.O.P. NO. 227 OF 2022 ON THE FILES OF THE HON'BLE FAMILY COURT, KOTTAYAM AT ETTUMANOOR Exhibit P3 TRUE COPY OF THE OBJECTION DATED 12.05.2022 FILED BY THE PETITIONER HEREIN AGAINST I.A. NO. 3 OF 2022 IN O.P. NO. 227 OF 2022 ON THE FILES OF THE HON'BLE FAMILY COURT, KOTTAYAM AT ETTUMANOOR Exhibit4 TRUE COPY OF THE JUDGMENT DATED 15.09.2022 IN O.P. (FC) NO. 442 OF 2022 ON THE FILES OF THE HONORABLE HIGH COURT OF KERALA Exhibit5 TRUE COPY OF THE ORDER DATED 01.08.2022 IN I.A. NO. 3 OF 2022 IN O.P. NO. 227 OF 2022, ON THE FILES OF THE HONORABLE COURT OF THE JUDGE, FAMILY COURT KOTTAYAM AT ETTUMANOOR