JAMINUDEEN v. ASWATHY NATH

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** **O.P.(FC) NO. 585 OF 2022 AGAINST THE ORDER DATED 27.08.2022 IN I.A.NO.1 OF 2022 IN O.P.(G&W) NO.1950 OF 2022 OF THE FAMILY COURT, THIRUVANANTHAPURAM** **PETITIONER:** **JAMINUDEEN AGED 38 YEARS, S/O YOOSUF, HOUSE NO.82, BAINS COMPOUND, NANTHANCODE, KAWADIAR, THIRUVANANTHAPURAM, NOW RESIDING AT 5D SHIRDI, PHASE 2, SOUPARNIKA APARTMENTS, MUCKOLAKKAL P.O., THIRUVANANTHAPURAM, PIN – 695043.** **BY ADV ABHILASH S.FRANCIS** **RESPONDENT:** **ASWATHY NATH @ AYISHA AGED 33 YEARS, D/O P.K.HAREENDRA NATH, T.C.21/1881, STRA 15, PANAYIL PUTHENVEEDU, ELANKOM NEDUNGADU, KARAMANA, THIRUVANANTHAPURAM, PIN – 695002.** **BY ADVS. NEETHU SOMAN I.DINESH MENON** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 28.10.2022, ALONG WITH OP (FC).608/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) Nos.585 & 608 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** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** **O.P.(FC) NO. 608 OF 2022** **AGAINST THE ORDER DATED 27.08.2022 IN I.A.NO.1 OF 2022 IN O.P.(G&W) NO.1950 OF 2022 OF THE FAMILY COURT, THIRUVANANTHAPURAM** ## **PETITIONER:** **ASWATHY NATH @ AYISHA AGED 33 YEARS, D/O P.K. HAREENDRA NATH, TC 21/1881, STRA 15, PANAYIL PUTHENVEEDU, ELANKOM, NEDUNGADU, KARAMANA, THIRUVANATHAPURAM, PIN – 695002.** **BY ADVS. NEETHU SOMAN I.DINESH MENON** ## **RESPONDENT:** **JAMINUDEEN** **S/O YOOSUF, AGED 38 YEARS HOUSE NO. 82, BAINS COMPOUND, NANTHANCODE, KAWADIAR, THIRUVANATHAPURAM NOW RESIDING AT 5D, SHIRDI, PHASE 2, SOUPARNIKA APARTMENTS, MUKKOLACKAL P.O THIRUVANATHAPURAM, PIN – 695043.** **BY SRI ABHILASH S.FRANCIS** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28.10.2022, ALONG WITH OP (FC).585/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) Nos.585 & 608 of 2022 ## **JUDGMENT** ## Ajithkumar, J. O.P.(G&W) No.1950 of 2022 was filed by the mother of minor child Aliya Sulthana, aged 12 years, born to her in wedlock with the respondent, Mr.Jaminudeen. The mother seeks to appoint her as the guardian and grant her permanent custody of Aliya Sulthana. She had filed I.A.No.1 of 2022 in the O.P. for getting interim custody of the child. The Family Court as per Ext. P10 order dated 27.08.2022 disposed of I.A.No.1 of 2022 ordering as follows: “2) The petitioner and the respondent present. Child produced. Both sides agreed that: i) The respondent will handover custody of the child to the petitioner on all second Saturdays and 4th Saturdays between 10.00 a.m. and 5.30 p.m.; ii) The child shall be handed over and received back in front of the Juma Masjid, Palayam, Thiruvananthapuram. iii) The petitioner will have the right to talk with the child over telephone between 7.00 p.m. And 8.00 p.m. on all days. iv) The child shall not be shifted out side the district without the permission of this Court. v) The petitioner shall not take the child outside the district while the child is in her custody.” 4 O.P.(FC) Nos.585 & 608 of 2022 2. The father has filed O.P.(FC) No.585 of 2022 challenging the said order. The mother also challenges the order for which she filed O.P.(FC) No.608 of 2022; both under Article 227 of the Constitution of India. Both of them would contend that the facts and circumstances which have necessary bearing while deciding the custody of the child were not evaluated by the Family Court and therefore the impugned order, Ext.P10 in O.P.(FC) No.585 of 2022 is liable to be set aside. 3. In O.P.(FC) No.585 of 2022 notice was directed to be served on the respondent as per order dated 18.10.2022. Both parties were directed also to be present along with the child before this Court in person on 21.10.2022. On that day, the father along with the minor child appeared in person before this Court. We interacted with the child and the father. Mother did not turn up. Therefore the matter was adjourned to today, and both parties were directed to be present along with the child. 4. Today, both parties appeared in person. The child is not produced. It is submitted that the child is laid up with 5 O.P.(FC) Nos.585 & 608 of 2022 fever and she could not be brought to the Court owing to her health condition and also the medical advice. We have directed the father to facilitate the mother to contact the child over phone. After the conversation with the child over phone, the mother informed us that the child inferentially has ailments; not only fever but also some other serious illness. 5. Heard the learned counsel appearing on either side. 6. In **Rosy Jacob v. Jacob A. Chakramakkal [1973** **(1) SCC 840]** the Apex Court held that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. 6 O.P.(FC) Nos.585 & 608 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 based on 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** 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 7 O.P.(FC) Nos.585 & 608 of 2022 only the requirement of the child but is his/her fundamental 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 reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs 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 denied any visitation rights or contact with the child. Courts dealing with custody matters must while deciding issues of custody clearly 8 O.P.(FC) Nos.585 & 608 of 2022 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. The father would allege that the mother abandoned the matrimonial home leaving the child with him almost 9 years ago, and therefore the child has no acquaintance with the mother. The father also attributed an allegation that the mother eloped with another and neglected the child all these periods. The contention of the mother is that on account of the denial on the part of the father only she could not interact with the child. She alleges that the child is not being provided with the necessary facilities for proper upbringing. It is further alleged that the child suffers torture at the hands of the father and his relatives, resulting in the intervention by the Child Welfare Committee. She is not living in a conducive environment and her health condition, both physical and mental, is deteriorated for want of due care and attention from the father. 9 O.P.(FC) Nos.585 & 608 of 2022 10. When both sides raised such allegations to each other and materials probabilising the same were placed on record, due consideration of such aspects by the Family Court is essential. If there exist some disgusting aspects that impede the welfare of the child it is the duty and obligation of the Court to enquire into and decide as to what shall be the best option in the welfare and interest of the child. In the facts and circumstances of this case, such an inquiry, bearing in mind the principles laid down by the Apex Court in the aforementioned decisions is essential. We hasten to state that having consented before the Family Court to pass the impugned order, it is inappropriate for them to backtrack from their words and challenge the order. Both the father and the mother now contend that the terms regarding custody of the child in the impugned order need modification in order for safeguarding the interest of the child. We are satisfied also from the rival contentions and materials placed on record that before ordering interim custody of the child, evaluation by the Family Court is required regarding what shall be the proper 10 O.P.(FC) Nos.585 & 608 of 2022 course for ensuring welfare of the child. Hence, we deem it appropriate to set aside the impugned order. 11. In the circumstances, we allow both these Original Petitions. The order dated 27.08.2022 in I.A.No.1 of 2022 in O.P.(G&W) No.1950 of 2022 is set aside. The matter is remitted to the Family Court, Thiruvananthapuram. The parties are directed to appear before the Family Court at **12.30 p.m** . on **31.10.2022** . The father shall produce the child before the Family Court and the Family Court shall take necessary steps to ensure that the health condition of the child is taken care of and do the needful in that matter. The Family Court after interacting with the child and parents will take appropriate decisions in the matter of interim custody. Registry shall forthwith communicate a copy of this judgment to the Family Court, Thiruvananthapuram. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) Nos.585 & 608 of 2022 ## **APPENDIX OF OP (FC) 585/2022** ## **PETITIONER EXHIBITS** **EXHIBIT-P1 A TRUE COPY OF THE O.P. (G&W) NO. 1950/2022 FILED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM DATED 22.07.2022 EXHIBIT-P2 A TRUE COPY OF THE IA NO.1/2022 FILED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM EXHIBIT-P3 A TRUE COPY OF THE SETTLEMENT AGREEMENT IN M.C.NO.20/2013 DATED 19.10.2013 EXHIBIT-P4 TRUE COPY OF THE ORDER FOR PLACEMENT OF THE CHILD UNDER THE CARE OF A PARENT, GUARDIAN OR FIT PERSON PENDING ENQUIRY ISSUED BY THE CWC, TRIVANDRUM DATED 05.07.2022 EXHIBIT-P5 TRUE COPY OF THE OUT-PATIENT RECORD (MEDICAL COLLEGE, TRIVANDRUM) THE MINOR DATED 28.08.22. EXHIBIT-P6 TRUE COPY OF THE OUT-PATIENT RECORD (MEDICAL COLLEGE, TRIVANDRUM) THE MINOR DATED 30.08.2022. EXHIBIT-P7 TRUE COPY OF THE OUT-PATIENT RECORD (MEDICAL COLLEGE, TRIVANDRUM) THE MINOR DATED 14.09.2022 EXHIBIT-P8 A TRUE COPY THE MEDICAL CERTIFICATE ISSUED BY THE DR. T.V.ANILKUMAR, DEPARTMENT OF PSYCHIATRY, GOVT.MEDICAL COLLEGE, TRIVANDRUM DATED 30.08.2022** 12 ## O.P.(FC) Nos.585 & 608 of 2022 **EXHIBIT-P9 A TRUE COPY OF THE OBJECTION DATED 19.08.2022 FILED BY THE PETITIONER EXHIBIT-P10 CERTIFIED COPY OF THE ORDER IN I.A.NO.1.2022 IN O.P.(G&W) NO.1950/2022 DATED 27.08.2022** 13 O.P.(FC) Nos.585 & 608 of 2022 ## **APPENDIX OF OP (FC) 608/2022** **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF O.P(G &W)1950/2022 DATED 22/7/2022 ON THE FILE OF FAMILY COURT, THIRUVANATHAPURAM** **EXHIBIT P2** **TRUE COPY OF THE IA 1/2022 IN O.P(G&W)1950/2022 DATED 22/7/2022** **EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT DATED 15/1/2014 ENDORSED BY THE PETITIONER EXHIBIT P4 TRUE COPY OF ONE OF THE RECEIPT DATED 10/5/2014 ISSUED AGAINST ONE OF THE COMPLAINT SUBMITTED BY THE PETITIONER EXHIBIT P5 TRUE COPY OF THE ORDER DATED 27/8/2022 IA 1/2022 IN O.P(G &W)1950/2022.**