Heenak N v. Yasir P.M.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` & ``` ``` THEHONOURABLEMR.JUSTICEP.M.MANOJ ``` ``` WEDNESDAY,THE3[RD]DAYOFAPRIL2024/14THCHAITHRA,1946 ``` ``` OP(FC)NO.89OF2024 ``` ``` AGAINSTTHEORDERDATED08.01.2024INOPNO.784OF2023OF FAMILYCOURT,PALAKKADARISINGOUTOFTHEORDERDATED08.09.2023 INOPNO.784OF2023OFFAMILYCOURT,PALAKKAD ``` ## **`PETITIONER/PETITIONER/RESPONDENT:`** ``` HEENAK.N AGED30YEARS D/O.NAJEEB,32/297(2),ABHILASHNAGAR, PUTHUPALLYSTREET,NURANIP.O, PALAKKADDISTRICT,PIN-678004 ``` ``` BYADVK.ABOOBACKERSIDHEEQUE ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` YASIRP.M AGED37YEARS S/O.MUHAMMEDMUSTHAFA, PEZHUMTHARAKKALHOUSE, NABEELOILMILL,KONGADP.O, PALAKKADDISTRICT,PIN-678631 ``` ``` BYADVS. N.SUDHA(S-652) BABUSHANKAR(K/821/2010) ALVINJEWELS.S.(K/000876/2019) VIDHYAT.U.(K/000827/2023) MENINOFUTO(K/001231/2023) ``` OP(FC) No.89 of 2024 2 ## **`SREELAKSHMI B.T.(K/000991/2023)`** ``` SRI.KSBABU ``` ``` THISOP(FAMILYCOURT)HAVINGCOMEUPFORADMISSIONON 03.04.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` OP(FC) No.89 of 2024 3 ## **JUDGMENT** ## **Raja Vijayaraghavan, J.** This petition is filed seeking to quash the order dated 08.09.2023 in I.A.No.2 of 2023 in O.P.No.784 of 2023 and the further order dated 08.01.2024 in I.A. No. 5 of 2023 in O.P.No.784 of 2023 on the file of the Family Court, Palakkad. 2. The Original Petition was filed by the respondent father for permanent custody of the minor son. 3. While the petition was pending consideration, an application was filed as I.A. No. 2 of 2023 seeking interim custody. 4. The Family Court interacted with the parties and relying on the law laid down in the **Yashita Sahu[1]** came to the conclusion that while deciding matters of custody of a child, the primary and paramount > 1 Yashita Sahu v. State of Rajasthan and Others [2020 KHC 6045] OP(FC) No.89 of 2024 4 consideration is the welfare of the child. The Family Court also took note that a child, especially a child of tender years, requires the love, affection, company, and protection of both parents and the same basic human rights of the child. The Family Court took note of the fact that the child is seven years of age and after considering the entire facts issued the following directions:- - “1. The petitioner is allowed to have the interaction with the minor child on all 2nd and 4th Saturdays for the time being. 2. The respondent is hereby directed to produce the child before the C.M.O of this court on all 2nd and 4th Saturdays at 1.30 p.m and shall hand over the custody of the child to the petitioner till 4.30 p.m. 3. The petitioner shall handover the custody of the minor child at 4.30 p.m to the respondent in the presence of the C.M.O. 4. The petitioner shall not cause any annoyance or inconvenience to the child remaining in his custody. 5. The petitioner shall pay Rs.700/- to the respondent towards the travelling expense on all the interaction days; 6. The prayer of the petitioner for granting temporary custody as prayed is disallowed for the time being.” 5. It appears that in pursuance of the directions, on 14.10.2023, the mother brought the child to the Family Court for interaction with the OP(FC) No.89 of 2024 5 father. The mother alleges that the respondent attacked the petitioner consequent to which, she lodged an FIR before the Palaghat North Police Station and registered as Crime No.1289/2023 inter alia for the offence under Sections 341 and 323 of the Indian Penal Code. Three months after the registration of the crime, an application was filed as I.A.No. 5 of 2023 seeking to cancel the earlier order. 6. The Family Court heard both sides and took note of the fact that an incident had in fact taken place but it was held that the allegations therein were not a reason to cancel the earlier order. After considering the facts, the following directions were issued to ensure that an incident similar to the one that occurred on 14.10.2023 does not happen again:- “In the result, the petition is disposed of giving a warning to the original petitioner to abstain from causing any inconvenience or annoyance to the child as well to the original respondent and further directed the original petitioner and the original respondent (both) that during interaction days, the original petitioner and the original respondent alone shall be present in the Court precincts and the original petitioner alone is permitted to interact with the minor child and the original respondent shall leave the child freely for interaction.” 7. The said orders are under challenge. OP(FC) No.89 of 2024 6 8. Sri. K. Aboobacker Sidheeque, the learned counsel appearing for the petitioner, highlighted that permitting the child to have interaction with the father as per Ext.P4 order would only result in similar situations happening yet again. According to the learned counsel, the Family Court was not justified in not cancelling the order. 9. The learned counsel appearing for the respondent vehemently opposed the contentions and submitted that no incident of the nature alleged had in fact taken place and it is further submitted that registration of the crime is no reason to refuse interaction of the father with the minor child. 10. We have considered the submissions advanced. In Mat. Appeal No. 579/2020, we had occasion to consider the precedents of the Apex Court with regard to the custody of the children and had occasion to observe as under: “18. As held in Rohith Thammana Gowda, the welfare of the children is of paramount consideration in an enquiry regarding custody of children. In the matter involving the question of custody of a child it has to be borne in mind that the OP(FC) No.89 of 2024 7 question 'what is the wish/desire of the child' is different and distinct from the question 'what would be in the best interest of the child'. Certainly, the wish/ desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. It was further held that while considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned'. In other words, welfare of the child should be the paramount consideration.” 19. In Yashita Sahu, the Apex Court has reminded 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. It was further held that a child, especially a OP(FC) No.89 of 2024 8 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 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. 20. What can be discerned from the above judgments is that the child’s welfare is the most important consideration in OP(FC) No.89 of 2024 9 custody disputes. The principles in the above judgments can be encapsulated as under: i) Child's Welfare is Paramount: In custody matters, the child's welfare is the most important consideration, surpassing all other factors. ii) Child's Wishes vs. Best Interest: There's a distinction between what a child desires and what's actually best for them. While a child's wishes can be considered, the court must ultimately decide what serves their best interests, taking into account all relevant circumstances. - iii) Parental Conduct: Custody should not be decided based on negative traits of a parent unless there's serious, proven misconduct that makes them unfit for custody. The prime focus would still be the best interest of the child. - iv)Both Parents' Views and Child's Rights: Custody decisions should not be biased by the perspective of one parent over the other. The child, often caught in parental conflicts, has the right to love, affection, and care from both parents. The court must navigate these disputes carefully, ensuring the child's well-being is not compromised by parental conflict. - v) Importance of Both Parents: Even if custody is OP(FC) No.89 of 2024 10 awarded to one parent, the other must have sufficient visitation rights. This ensures the child maintains a relationship with both parents, which is crucial for their social, physical, and psychological development. - vi) Extreme Circumstances for Denying Contact: Only in severe cases should a parent be denied contact with their child. Courts must provide clear reasons for such decisions and define the specifics of visitation rights to ensure the child does not lose the connection with either parent.” In the light of the principles above, we have considered the facts and circumstances. We note that the child is the victim in custody battles and the acrimonious fight between spouses cannot be a reason to deny short interaction between the father and the child. We find that the Family Court has imposed appropriate conditions to ensure that no incident of a similar nature that took place on 14.10.2023 happens again. From the photographs produced before this Court, it appears that all through the interaction between the father and the child, the child is sitting on the lap of the mother and playing on a mobile phone. The quarrel occurred as both the parents were in the same room. The Family Court shall make an OP(FC) No.89 of 2024 11 endeavor and ensure that when the child is brought to the court premises for interaction, both spouses are not in the same room. In the facts and circumstances, we find absolutely no reason to interfere. This Original Petition is dismissed accordingly. sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** sd/- **P.M.MANOJ JUDGE** DCS OP(FC) No.89 of 2024 12 ## **`APPENDIX OF OP (FC) 89/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit-P1ATRUECOPYOFTHEO.P.NO.784/2023OFTHE FAMILYCOURT,PALAKKAD. Exhibit-P2ATRUECOPYOFTHEI.ANO.2/2023INO.P NO.784/2023OFTHEFAMILYCOURT,PALAKKAD. Exhibit-P3ATRUECOPYOFTHEOBJECTIONFILEDINI.A NO.2/2023INO.PNO.784/2023OFTHEFAMILY COURT,PALAKKADDATED18.08.2023. Exhibit-P4ATRUECOPYOFTHEORDERDATED08.09.2023IN I.ANO.2/2023INO.PNO.784/2023OFTHEFAMILY COURT,PALAKKAD. Exhibit-P5ATRUECOPYOFTHEWOUNDCERTIFICATEDATED 14.10.2023ISSUEDFROMTHEDISTRICTHOSPITAL, PALAKKAD. Exhibit-P6ATRUECOPYOFTHEF.I.RDATED15.10.2023IN CRIMENUMBER1289OF2023OFPALAKKADTOWN NORTHPOLICESTATION,PALAKKADDISTRICT. Exhibit-P7ATRUECOPYOFTHEI.ANO.5/2023INO.P NO.784/2023OFTHEFAMILYCOURT,PALAKKAD. Exhibit-P8ATRUECOPYOFTHEOBJECTIONFILEDINI.A NO.5/2023INO.PNO.784/2023OFTHEFAMILY COURT,PALAKKADDATED26.10.2023. Exhibit-P9ATRUECOPYOFTHEORDERDATED08.01.2024IN I.ANO.5/2023INO.PNO.784/2023OFTHEFAMILY ``` OP(FC) No.89 of 2024 13 ## **`COURT, PALAKKAD.`** ## **`RESPONDENT EXHIBITS`** ``` ExhibitR1(a)Aphotographoftheinteractionduringthetime ofon23rdSeptember,2023 ```