Hasanul Banna and Master Ishaan v. Bincy Rani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022/10TH KARTHIKA, 1944** **O.P.(FC) NO. 558 OF 2022 AGAINST THE ORDER DATED 03.08.2022 IN I.A.NO.6 OF 2022 IN O.P.NO.711 OF 2021 OF THE FAMILY COURT, MAVELIKKARA** ## **PETITIONERS:** - **1 HASANUL BANNA AGED 43 YEARS, S/O MOHAMMED SHEREEF, VALAYIL HOUSE, CHIRAKADAVAM, KAYAMKULAM, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690106.** - **2 MASTER ISHAN,** - **AGED 6 YEARS, MINOR, AGED 6 YEARS, S/O HASANUL BANNA, VALAYIL HOUSE, CHIRAKADAVAM, KAYAMKULAM, KARTHIKAPPALLY TALUK, REP. BY HIS GUARDIAN, THE 1ST PETITIONER, HASANUL BANNA, VALAYIL HOUSE, CHIRAKADAVAM, KAYAMKULAM, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT., PIN – 690106.** ## **BY ADV K.S.HARIHARAPUTHRAN** ## **RESPONDENT:** ## **BINCY RANI** **AGED 38 YEARS, D/O ABDUL SALAM, NISA MANSIL, KRISHNAPURAM, KAYAMKULAM, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690106.** **BY ADV K.SHAJ** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 26.10.2022, ALONG WITH OP (FC).559/2022, THE COURT ON 01.11.2022 DELIVERED THE FOLLOWING:** 2 O.P.(FC) Nos.558 & 559 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022/10TH KARTHIKA, 1944 O.P.(FC) NO. 559 OF 2022** **AGAINST THE ORDER DATED 03.08.2022 IN I.A.NO.6 OF 2022 IN O.P.NO.711 OF 2021 OF THE FAMILY COURT, MAVELIKKARA PETITIONER:** ## **HASANUL BANNA,** **AGED 43 YEARS, S/O MOHAMMED SHEREEF, VALAYIL HOUSE, CHIRAKADAVAM, KAYAMKULAM, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690106.** **BY ADV K.S.HARIHARAPUTHRAN** ## **RESPONDENT:** **BINCY RANI** **AGED 38 YEARS, D/O ABDUL SALAM, NISA MANSIL, KRISHNAPURAM, KAYAMKULAM, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690106.** **BY ADV K.SHAJ** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 26.10.2022, ALONG WITH OP (FC).558/2022, THE COURT ON 01.11.2022 DELIVERED THE FOLLOWING:** 3 O.P.(FC) Nos.558 & 559 of 2022 ## **JUDGMENT** ## Ajithkumar, J. These Original Petitions under Article 227 of the Constitution of India are filed by the father of Ishan, aged 6 years. The father is the 1[st] petitioner and minor is the 2[nd] petitioner in O.P.(FC) No.558 of 2022. The challenge is against Ext.P8 in both the cases, which is a common order of Family Court, Mavelikkara dated 03.08.2022 in I.A.No.5 of 2022 in O.P.(G&W) No.546 of 2021 and I.A.No.6 of 2022 in O.P.(G&W) No.711 of 2021. 2. On 29.09.2022, notice on admission was directed to be served on the respondent. The respondent entered appearance through her learned counsel. A counter affidavit was placed on record by the respondent. 3. Both parties along with the minor child were directed to be personally present before this Court on 26.10.2022. The parties along with the child personally appeared before this Court pursuant to the direction. The 4 O.P.(FC) Nos.558 & 559 of 2022 couple have an elder daughter, Hajira. She was also present along with the mother. We interacted with the parents and the children individually. 4. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. 5. Marriage between the 1[st] petitioner and the respondent was solemnized on 19.07.2009. The 1[st] petitioner is employed in U.A.E. He took the respondent also abroad and they were living there along with the children. In August 2020, the respondent came home along with the children. The discord arose in their marital relationship thereafter. The wrangle for the custody of the children ensued thereafter. The children were with the respondent. The 1[st] petitioner came back and he claims that owing to the wishes of the younger child, he took Ishan along with him. There arose a police case. The respondent also had filed a complaint before the Judicial First Class Magistrate Court, Kayamkulam under the 5 O.P.(FC) Nos.558 & 559 of 2022 provisions of the Protection of Women from Domestic Violence Act, 2005 as M.C.No.56 of 2021. It is seen that the protection order was issued in favour of the respondent on 25.03.2021. It was thereafter the 1[st] petitioner filed O.P.(G&W) No.546 of 2021 before the Family Court, Mavelikkara for getting an order to keep Ishan along with him. The respondent filed O.P. (G&W) No.711 of 2021 for getting custody of Ishan. Both of them filed interlocutory applications in the respective cases claiming interim custody of Ishan. The Family Court, Mavelikkara issued Ext.P3 order on 27.08.2021 in O.P.(FC) No.558 of 2022 in the said interlocutory applications. Following are the arrangements made regarding the custody of Ishan during the pendency of the original petitions: “A) The petitioner in O.P.546 of 2021 (the father) is entitled to custody of the child from 10 a.m. every Sunday till 10 a.m. on the succeeding Wednesday. B) The petitioner in O.P.711 of 2021 (the mother) is entitled to get custody of the child from 10 a.m of every Wednesday till 10 a.m on the succeeding Sunday. C) The petitioner in O.P.711 of 2021 (mother) is permitted to take the custody of the child from the 6 O.P.(FC) Nos.558 & 559 of 2022 father at 10 a.m every Wednesday from the residence of the father (petitioner in O.P.546 of 2021). She is entitled to continue the custody of the child till 10 a.m on the following Sunday. The father (petitioner in O.P.546 of 2021) is directed to hand over the custody of the child to the mother (petitioner in O.P.711 of 2021) as directed above. D) The father (petitioner in O.P.546 of 2021) is entitled to get back the custody of the child on the succeeding Sunday at 10 am from the residence of the mother (petitioner in O.P.711 of 2021). He is entitled to continue the custody till 10 a.m. on the following Wednesday. The mother is directed to hand over the custody of the child to the father as directed above. E) This arrangement shall commence from 01-092021 onwards and shall continue until further orders.” 6. The said order did not bring about qualm to the dispute. Allegations and counter allegations arose. The 1[st] petitioner alleged that the respondent had not been complying with the directions regarding handing over and custody of the child. The respondent alleged that the 1[st] petitioner started living with another lady, and therefore it was unsafe to send 7 O.P.(FC) Nos.558 & 559 of 2022 the child along with him. She thus justified her noncompliance of the directions in Ext.P3 order. The 1[st] petitioner filed I.A.No.5 of 2022 in O.P.(G&W) No.546 of 2021 for initiating action against the respondent for non-compliance of the directions in Ext.P3 order. The respondent filed I.A.No.6 of 2021 in O.P.(G&W) No.711 of 2021 seeking to modify Ext.P3 order. Both sides filed written objections to the interlocutory applications. The Family Court, Mavelikkara, after hearing both sides, passed Ext.P8 order by which the directions regarding interim custody of the minor Ishan were modified. Following are the arrangements made: “(a) the common order dated 27.08.2021 in I.A.No.1 of 2021 in O.P.No.711 of 2021 and I.A.No.1 of 2021 in O.P.No.546 of 2021 is set aside. (b) the petitioner in O.P.No.711 of 2021 shall have the interim custody of the minor Ishan until further orders; (c) the petitioner in O.P.No.546 of 2021 is allowed to interact with the minor in the presence of the Sheristadar of this court on the first and third Saturdays of every month from 11 a.m. to 3 p.m. until further orders.” 8 O.P.(FC) Nos.558 & 559 of 2022 7. The learned counsel appearing for the petitioner would submit that the impugned order insofar as it denies opportunity to the 1[st] petitioner even to freely interact with the child is harsh and illegal. It is contended that the Family Court did not honour the right of the father to have custody of the child atleast intermittently and thereby his right as natural guardian of the child was totally neglected. 8. The learned counsel appearing for the respondent, on the other hand, would submit that in his objection filed in I.A.No.6 of 2022 in O.P.(G&W) No.711 of 2021, Ext.P7, the 1[st] petitioner admitted that he has been residing along with another lady and on considering that fact, the Family Court denied him custody of the child. The learned counsel for the respondent also justified the direction allowing the 1[st] petitioner to have interaction with the child in the presence of the Sheristadar of the Family Court. 9. During our interaction, the 1[st] petitioner stated that he can stay back in India for one more month and at least 9 O.P.(FC) Nos.558 & 559 of 2022 during that period he should be given space for interacting with the children freely. He alleges that in the light of the directions in Ext.P8, he has not been allowing him to take the child even out of the court premises. 10. 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 10 O.P.(FC) Nos.558 & 559 of 2022 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. 11. 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 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 11 O.P.(FC) Nos.558 & 559 of 2022 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. 12. 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. 12 O.P.(FC) Nos.558 & 559 of 2022 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. 13. 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. 13 O.P.(FC) Nos.558 & 559 of 2022 14. The learned counsel appearing for the respondent placed reliance on the decisions in **Kurian C.Jose v. Meena Jose [1992 (1) KLT 818]** in order to fortify his contention that when the father is residing with concubine, it is totally unsafe to leave the minor child along with him. It was held there that considering the fact that the father was having a relationship with another woman, it could not be safe to allow him to have custody of the minor child. It was observed that by denying custody of the child to the father, who is the natural guardian, itself his right would not be vitiated. 15. The elder child, who is now aged 12 years, is with the respondent-mother. Needless to say that it is always appropriate to allow minor siblings to stay together and any separation naturally would adversely affect their emotional bandage and proper upbringing. Therefore it is in the interest of not only the younger child, but also the elder one not to give overnight custody of the child to the petitioner. 16. Yet another reason stated by the respondent for not 14 O.P.(FC) Nos.558 & 559 of 2022 giving overnight custody of the child to the petitioner is that he has been residing with another woman. That fact is is admitted by the petitioner in the objection filed by him. He did not divulge the relationship between them. All the same, it is necessary to afford necessary opportunity for the father to freely interact with the child. Considering all such aspects, we are of the view that there shall be a modification to the impugned order. Accordingly the petitions are disposed of by confirming the order of the Family Court dated 03.08.2022 with the modification that the petitioner shall be allowed to interact with the child freely during the time allowed by the Family Court as per the said order. We make it clear that the petitioner will be free to take the child outside the premises of the court, but not beyond the local limits of Mavelikkara city. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 15 O.P.(FC) Nos.558 & 559 of 2022 ## **APPENDIX OF OP (FC) 558/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE OP(G&W) NO.546/2021, DATED 08-04-2021, FILED BY THE PETITIONERS BEFORE THE FAMILY COURT, MAVELIKKARA** - **EXHIBIT P2 TRUE COPY OF THE OP 711/2021 DATED 05-052021 ON THE FILES OF THE FAMILY COURT, MAVELIKARA** - **EXHIBIT P3 TRUE COPY OF THE COMMON ORDER DATED 27-082021IN I.A.NO.1/2021 IN O.P.NO.711/2021 AND I.A.NO.1/2021 IN OP. 546/2021 PASSED BY THE FAMILY COURT MAVELIKARA** - **EXHIBIT P4 TRUE COPY OF IA 5/2022 IN OP(G&W) NO.546/2021 DATED 04-07-2022 ON THE FILE OF THE FAMILY COURT, MAVELIKKARA** - **EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 14-7-2022, FILED IN IA NO. 5/2022 IN OP(G&W) NO.546/2021 OF THE FAMILY COURT, MVELIKKARA** - **EXHIBIT P6 TRUE COPY OF THE IA 6/2022 IN OP NO711/2021 DATED 06-7-2022 OF THE FAMILY COURT, MAVELIKKARA** - **EXHIBIT P7 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT IN IA 6/2022 IN OP NO711/2021 DATED NIL OF THE FAMILY COURT, MAVELIKKARA** - **EXHIBIT P8 TRUE COPY OF THE COMMON ORDER DATED 03-82022IN I.A.NO.5/2022 IN OP(G&W) 546/2021 AND I.A.NO.6/2022 IN OP.NO.711/2021 PASSED BY THE FAMILY COURT MAVELIKARA** 16 O.P.(FC) Nos.558 & 559 of 2022 ## **APPENDIX OF OP (FC) 559/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE OP(G&W) NO.546/2021, DATED 08-04-2021, FILED BY THE PETITIONERS BEFORE THE FAMILY COURT MAVELIKARA** - **EXHIBITP2 TRUE COPY OF THE OP 711/2021 DATED 05-052021 ON THE FILES OF THE FAMILY COURT, MAVELIKARA** - **EXHIBIT P3 TRUE COPY OF THE COMMON ORDER DATED 27-082021IN I.A.NO.1/2021 IN O.P.NO.711/2021 AND I.A.NO.1/2021 IN OP. 546/2021 PASSED BY THE FAMILY COURT MAVELIKARA** - **EXHIBIT P4 TRUE COPY OF IA 5/2022 IN OP(G&W) NO.546/2021 DATED 04-07-2022 ON THE FILE OF THE FAMILY COURT, MAVELIKKARA** - **EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 14-7-2022, FILED IN IA NO. 5/2022 IN OP(G&W) NO.546/2021 OF THE FAMILY COURT, MVELIKKARA** - **EXHIBIT P6 TRUE COPY OF THE IA 6/2022 IN OP NO711/2021 DATED 06-7-2022 OF THE FAMILY COURT, MAVELIKKARA** - **EXHIBIT P7 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT IN IA 6/2022 IN OP NO711/2021 DATED NIL OF THE FAMILY COURT, MAVELIKKARA** - **EXHIBIT P8 TRUE COPY OF THE COMMON ORDER DATED 03-82022IN I.A.NO.5/2022 IN OP(G&W) 546/2021 AND I.A.NO.6/2022 IN OP.NO.711/2021 PASSED BY THE FAMILY COURT, MAVELIKARA.**