Faizal Ali Pambodan v. Mumthas K

# **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 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944 O.P.(FC) NO. 478 OF 2022** **AGAINST THE ORDER DATED 11.08.2022 IN I.A.NO.2 OF 2022 IN O.P.(G&W) NO.314 OF 2022 OF THE FAMILY COURT, MALAPPURAM PETITIONER:** **FAIZAL ALI PAMBODAN AGED 37 YEARS, S/O KAMMED HAJEE PAMBODAN, KUTTANKAVIL HOUSE, MUTHUVALLUR P.O, KONODOTTY TALUK, MALAPPURAM DISTRICT PIN -673638, NOW WORKING AT AL TAWAKKAL TYPING, SHABIYA 9, NEAR SAFEER CENTRE, ABUDABI, U.A.E. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NOUSHAD K P, AGED 43 YEARS, S/O KOYAMKUTTY, KONDASSAN PARAMBIL HOUSE, PAZHAYANGADI, KONDOTTY P.O, KONDOTTY TALUK, MALAPPURAM DISTRICT KERALA STATE, INDIA, PIN- 673638. BY ADVS. O.A.NURIYA REVATHY P. MANOHARAN NEBIL NIZAR** ## **RESPONDENT:** **MUMTHAS K** **AGED 29 YEARS, D/O BEERANKUTTY, KUNNUMMAL HOUSE, THARAYITTAL P.O, KARIPPUR, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN- 673638.** **BY ADV K.RAKESH** **2** O.P. (FC) No.478 of 2022 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 15.09.2022, THE COURT ON 28.09.2022 DELIVERED THE FOLLOWING:** **3** O.P. (FC) No.478 of 2022 ## **JUDGMENT** ## Ajithkumar, J. Father is the petitioner. He was the respondent in O.P. (G&W) No.314 of 2022 and I.A.No.2 of 2022 in that O.P. on the file of the Family Court, Malappuram. He filed this Original Petition under Article 227 of the Constitution of India aggrieved by the order dated 11.08.2022 in I.A.No.2 of 2022. 2. When this matter came up for admission on 24.08.2022, notice was directed to be served on the respondent. She entered appearance through a learned counsel. 3. We heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. Marriage of the petitioner and the respondent was on 02.02.2012. They have three children, namely, Mohammed Shafin, aged 8 years, Mohammed Shazin, aged 6 years and Mohammed Shan, aged 4 years. O.P.No.314 of 2022 was filed by the respondent-mother seeking custody of **4** O.P. (FC) No.478 of 2022 the children. The allegation was that the children were taken away by the petitioner by deceptive method and in violation of the agreement between the parties dated 04.10.2021, by which custody of the children was entrusted to the respondent. It is seen that the respondent filed W.P.(Crl.) No.36 of 2022 before this Court alleging illegal detention of the children by the petitioner. However, the respondent had to approach the Family Court, Malappuram, since this Court refused to give a positive direction in that Writ Petition regarding custody of the children. Later, in O.P.(FC) No.427 of 2022, which was filed by the petitioner in the above context, production of the children by the petitioner was directed and accordingly the children were produced by the petitioner before this Court. O.P.(FC) No.427 of 2022 was disposed of as per the judgment dated 05.08.2022, wherein it was ordered as follows: - “2. Taking note of the nature of the order, we directed the father to produce the children before us. The father along with the children are now in Abu Dhabi. Today, the father appeared before us along with the children. The mother also appeared before us. We allowed the mother **5** O.P. (FC) No.478 of 2022 to interact with the children. After the interaction, we observed that both mother and father are bonding with the children. However, it is for the Family Court to take appropriate decision regarding interim custody on the application filed by the mother. We direct the Family Court to pass orders on the interim custody application after adverting to the objections of the father within a period of two weeks. The Family Court shall not insist on further production of the children. The further production and custody would depend upon the order to be passed in such interlocutory application. We make it clear that both parties shall be heard before passing orders. In the light of the compliance of the order passed by the Family Court producing the children before this Court, no coercive steps shall be taken against the father for non-production of the children. Untrammelled by any observation, the Family Court shall take up the interlocutory application on its merits and pass appropriate orders.” 5. In obedience to the directions contained therein, the Family Court, Malappuram has passed the impugned order. The observations of the Family Court, Malappuram, contained in paragraph No.5 of the impugned order require mention. The observations are,- - “It is argued by the learned counsel for the respondent that the two elder children are **6** O.P. (FC) No.478 of 2022 accommodated in an international school in Abu Dhabi. The respondent has requested me to ascertain the wishes of the children through video conferencing. It is not possible to ascertain the wishes of the children through video conferencing as the same has to be done in a free, independent and calm atmosphere. Before ascertaining any such wishes of the children some cooling time should be given after detaching the children from the custody of the father. As it concerns ascertaining of the wishes of the children, which will be very often marred through tutoring, it is necessary that it should be done after they are physically produced in court. Moreover, there is a specific direction of the Hon'ble High Court not to insist on further production of the children.” 6. The view taken by the Family Court was that wishes of the children should be ascertained before taking a decision on the custody of the children and that it should be done after their physical production in court. In the light of the direction of this Court in the judgment dated 05.08.2022, the Family Court was unable to procure presence of the children. So, the Family Court is quite justified in taking a decision in the matter of interim custody without production and ascertainment of the wishes of the children. **7** O.P. (FC) No.478 of 2022 7. 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 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. 8. In **Yashita Sahu** (supra) the Apex Court noticed that a child, especially a child of tender years requires the **8** ## O.P. (FC) No.478 of 2022 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 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 **9** ## O.P. (FC) No.478 of 2022 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. 9. 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 **10** ## O.P. (FC) No.478 of 2022 welfare of the child must get precedence over the individual or personal rights of the parents. 10. 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. 11. In the light of the law laid down in the aforesaid decisions, we are of the view that the Family Court is required to ascertain the wishes of the children, especially when the elder child is aged 8 years, before taking a decision regarding their custody, whether it be with the father or the mother, and also the visitation right. We are aware of the fact that the children having been enrolled in a school abroad, bringing **11** ## O.P. (FC) No.478 of 2022 them before the Family Court, Malappuram frequently would not be in their best interest. However, the Family Court has to be given freedom to interact with the children and then to take a decision regarding their custody. Taking all such aspects into account, we are of the view that Ext.P6 order dated 11.08.2022 needs interference. The said order is set aside. The matter is remitted to the Family Court, Malappuram for taking a decision regarding custody of the children, including interim custody. The Family Court may direct the petitioner to produce the children before the court for the purpose of interaction and ascertaining their wishes. However, the Family Court shall keep in mind that during such exercise, studies of the children are not affected. The Original Petition is disposed of accordingly. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr **12** O.P. (FC) No.478 of 2022 ## **APPENDIX OF OP (FC) 478/2022** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER AND THE RESPONDENT DATED 04.10.2021 Exhibit P2 TRUE COPY OF O.P(G&W) 314 OF 2022 DATED 17.03.2022 Exhibit P3 TRUE COPY OF THE ORDER IN W.P. (CRL).NO.136 OF 2022 DATED 1O.03.2O22 Exhibit P4 TRUE COPY OF THE ORDER IN I.A.NO.2 OF 2O22 DATED 17.03.2022 Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 05.08.2022 OF THIS COURT IN OP (FC) NO. 427/2022 Exhibit P6 TRUE COPY OF THE ORDER DATED 11.08.2022 IN I.A. NO.2/2022 IN O.P.NO.314/2022 ON THE FILES OF THE FAMILY COURT, MALAPPURAM Exhibit P7 TRUE COPY OF THE JUDGMENT IN ROHITH THAMMANA GOWDA VS. STATE OF KARNATAKA AND OTHERS (2022 LIVELAW (SC) 643) DATED 29.07.2022**