HARSHA LAL v. NADARAJAN and REMA

# **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 18[TH] DAY OF JANUARY 2023 / 28TH POUSHA, 1944 OP (FC) NO.692 OF 2022** **AGAINST THE ORDER IN I.A. NO.6 OF 2022 IN O.P(G&W) 3 OF 2022 OF FAMILY COURT, CHAVARA DATED 24.08.2022** ## **PETITIONER/RESPONDENT IN OP:** **HARSHA LAL AGED 29 YEARS D/O.LAL, MALINI, ADINADU NORTH, KARUNAGAPPALLY, KOLLAM 690542, PIN - 690542** **BY ADVS. O.A.NURIYA NEBIL NIZAR REVATHY P. MANOHARAN ASHEEK ANTONY** ## **RESPONDENT/PETITIONERS IN OP:** **1 NADARAJAN AGED 57 YEARS S/O.VASUDEVAN, THANAL, VATHIKULAM, THEKKEKARA, MAVELIKKARA, ALAPPUZHA - 690101.** **2 REMA AGED 51 YEARS W/O.NADARAJAN, THANAL, VATHIKULAM,** 2 O.P.(FC) No.692 of 2022 **THEKKEKARA, MAVELIKKARA, ALAPPUZHA 690101** **BY ADVS.** **Suresh Kumar M.T. P.R.JAYASANKAR(K/1637/2003) DARSAN SOMANATH(K/150/2007) MANJUSHA K(K/000191/2018) SREELAKSHMI SABU(K/000200/2020)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.692 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. Petitioner is the mother of a girl child, Naira Harsha, now aged one year and ten months. The respondents filed O.P. (G&W) No.3 of 2022 before the Family Court, Chavara. They are the grandparents of the child. They filed I.A. No.6 of 2022 in that O.P for getting interim custody of the child. Father of the child is now abroad. The Family Court as per Ext.P4 order dated 24.08.2022, allowed the respondents to have interim custody of the child on the 3rd Saturday of every month from 11.00 am till 3.00 pm from the premises of the Family Court. The petitioner filed this original petition under Article 227 of the Constitution of India seeking to set aside the said order. 2. On receipt of the notice issued on admission, the respondents entered appearance through their learned counsel. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4 O.P.(FC) No.692 of 2022 4. 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. 5. In **Yashita Sahu** (supra) the Apex Court noticed that a child, especially a child of tender years requires the 5 O.P.(FC) No.692 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 6 O.P.(FC) No.692 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. 6. 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 7 O.P.(FC) No.692 of 2022 welfare of the child must get precedence over the individual or personal rights of the parents. 7. The father of the child is abroad. The child is in the custody of the petitioner-mother. Paternal grandparents want to have interaction with the child periodically. The child is now aged only one year and 10 months. The Family Court after considering the rival contentions deemed it appropriate to allow the respondents to interact with the child for four hours once in a month. In the absence of the father in station, the paternal grandparents want to maintain their emotional connection with the child. The Family Court, relying on the principle laid down by this court in **Biji and another v. Vijil and others [2016 (2) KLT 673]** held that the grandparents should be given an opportunity to interact with the child. We find no reason to find fault with the said finding. Going by the principle laid down by the Apex Court in the aforementioned decisions also the view taken by the Family Court is appropriate in the circumstances of the case. We, in exercise of the powers under Article 227 of the Constitution of India 8 O.P.(FC) No.692 of 2022 are not sitting in appeal on that order. In the absence of any patent illegality the said order is not liable to be set aside. However, considering the tender age of the child, the time for interaction is reduced so as to avoid possible inconvenience to the child. This original petition is accordingly disposed of and Ext.P4, the order dated 24.08.2022 in I.A. No. 6 of 2022 in O.P.(G&W) No.3 of 2022, is modified to the extent that the interaction by the respondents with the child shall be from 11.00 am till 2.00 pm. All other conditions shall be as in Ext.P4. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** PV 9 O.P.(FC) No.692 of 2022 ## **APPENDIX OF OP (FC) 692/2022** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION OP (G&W) NO. 3 OF 2022 FILED BEFORE FAMILY COURT, CHAVARA 06.01.2022 Exhibit P2 TRUE COPY OF THE I.A NO.6 OF 2022 DATED 10.06.2022** **Exhibit P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I A. NO. 6 OF 2022 IN OP(G&W) NO. 3 OF 2022** **Exhibit P4 TRUE COPY OF THE ORDER IN I A. NO. 6 OF 2022 IN OP(G&W) 3 OF 2022 DATED 24.08.2022**