Jaseeba v. Noushad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 O.P.(FC) NO. 167 OF 2023** **AGAINST THE ORDER DATED 17.03.2023 IN I.A.NO.8 OF 2022 IN G.O.P.NO.846 OF 2023 ON THE FILE OF THE FAMILY COURT,** ## **KUNNAMKULAM** ## **PETITIONER:** **JASEEBA, AGED 31 YEARS, D/O MUHAMMED THELAKKAL VEETTIL, THAMBANKADAVU DESOM THALIKULAM VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN – 680569.** **BY ADVS. K.I.SAGEER MUHAMMED YASIL** **RESPONDENT:** **NOUSHAD AGED 48 YEARS, S/O PANIKKAVEETTIL HAMSA THALIKULAM DESOM, CHAVAKKAD TALUK, THRISSUR680569, PIN – 680569.** **BY ADV Dilip J. Akkara** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 04.04.2023, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.167 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The respondent in G.O.P.No.846 of 2023 on the files of the Family Court, Kunnamkulam is the petitioner. He seeks to set aside Ext.P3 order of the Family Court dated 17.03.2023 in I.A.No.8 of 2022 in GOP No.846 of 2023. 2. On 31.03.2023 notice on admission was directed to be served on the respondent, through Special Messenger. Both parties were directed to be present in person along with the child before this Court on 04.04.2023. 3. In terms of the said order, both parties personally appeared before this Court along with the child. We have interacted with them. They were thereafter directed to appear before the Family Counselling Centre under the Kerala High Court Legal Services Committee for counselling at 11.45 a.m. on the same day. After counselling, both parties along with the child were personally present before us at 4.15 p.m. We have interacted with them again. We also had perused the report of the Family Counsellor placed before us in a sealed cover. 3 O.P.(FC) No.167 of 2023 4. G.O.P.No.846 of 2023 was filed by the respondent seeking a decree allowing him permanent custody of the child, Fasalur Farisa, aged about 5 years. The original petition was initially filed before the Family Court Thrissur, where it was numbered as G.O.P.No.847 of 2022. It was later transferred to the newly established Family Court, Kunnamkulam where it was numbered as G.O.P.No.846 of 2023. 5. The respondent filed I.A.No.8 of 2022 for interim custody of the child. The respondent complained that leaving the child in the exclusive custody of the petitioner is detrimental to its welfare. It was alleged that the petitioner did not take care even to ensure the essential requirements of the child and disallowing the respondent to interact with the child. There has been threat from the petitioner as well as her mother of initiation of even criminal proceedings against the respondent, who is a Government servant. On the said grounds and also pointing out the love and affection from the father are also required for the proper upbringing of the child, he sought interim custody. The petitioner filed a detailed 4 O.P.(FC) No.167 of 2023 objection resisting giving overnight custody of the child to the respondent. But the Family Court after detailed consideration allowed the respondent to have interim custody of the child on every second and fourth Saturday and further interim custody during the first half of the Onam and Christmas holidays and first ten days of April and May during summer vacation. The said directions as per the order dated 17.03.2023, Ext.P3, are unacceptable to the petitioner. She would contend that the respondent and members of his family are ardent followers of superstitions and giving custody of the child to the respondent will ruin the life of the child. It is alleged that the respondent as well as his mother used to involve in black-magic and resist administering even vaccination to the child. 6. The learned counsel appearing for the petitioner by placing reliance on the decision **Rosy Jacob v. Jacob A. Chakramakkal [1973 (1) SCC 840]** contended that the health and education of the ward cannot be protected in the custody of the respondent and therefore Ext.P3 order requires interference. It is further submitted that if the welfare of the 5 O.P.(FC) No.167 of 2023 child cannot be ensured at the hands of the natural guardian, his claim for custody need not be entertained. 7. The law governing the custody of the children when there is dispute between the parents has been succinctly stated by the Apex Court in various decisions. A Three-Judge Bench of the Apex Court in **Rosy Jacob** (supra) 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. 8. 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 6 O.P.(FC) No.167 of 2023 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. 9. 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 7 ## O.P.(FC) No.167 of 2023 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 8 O.P.(FC) No.167 of 2023 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. 10. 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 welfare of the child must get precedence over the individual or personal rights of the parents. 9 O.P.(FC) No.167 of 2023 11. Although the petitioner alleges that the respondent believes in superstitions and follows black-magic there is absolutely nothing on record to substantiate the said allegations. The respondent is a Government servant. He resides along with his parents and other relatives. During interaction, the child did not show any reluctance to go along with the father. In the report, the Family Counsellor stated that the child was comfortable in the company of both mother and the father. From the materials on record, the reflections of the parents and child during our interaction and also during counselling, what emerges is that the unjustified apprehension of the petitioner is the reason for resisting the request of the respondent for interim custody of the child. Being the father, he also has the responsibility to look after the affairs of the child. The child must get the care and affection from the father. Only if both parents take due care in the proper upbringing, the welfare of the child can be ensured. In the light of the law laid down by the Apex Court in the aforesaid decisions, we are of the view that periodical 10 O.P.(FC) No.167 of 2023 custody of the child shall be given to the respondent-father. In view of that matter, the direction of the Family Court in Ext.P3 cannot be said to be totally incorrect. However, considering the age of the child we are of the view that the interim custody of the child can be restricted to two days each during Onam, Christmas and each month of summer vacation. 12. Ext.P3 is modified accordingly. Apart from the visitation right on 2nd and 4th Saturdays, as ordered in I.A.No.8 of 2022 the custody of the child shall be given to the respondent on the 3rd and 4th days of Onam and Christmas holidays and in the third week of April as well as May. The Original Petition is disposed of accordingly. The report of the Family Counsellor shall be kept in the safe custody of the Registrar (Judicial). **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) No.167 of 2023 ## **APPENDIX OF OP (FC) 167/2023** **PETITIONER EXHIBITS** **EXHIBIT-P1 A TRUE COPY OF THE PETITION IN G.O.P NO.847/2022 FILED BEFORE THE FAMILY COURT THRISSUR** **EXHIBIT-P2 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN G.O.P NO.847/2022 FILED BEFORE THE FAMILY COURT THRISSUR** **EXHIBIT-P3** **A TRUE COPY OF THE ORDER IN I.A NO.8/2022 IN G.O.P. NO. 846/2023 DATED 17.03.2023 ON THE FILES OF THE FAMILY COURT, KUNNAMKULAM** **EXHIBIT-P4** **A TRUE COPY OF THE PETITION AND AFFIDAVIT IN I.A NO.8/2022 IN G.O.P. NO. 847/2022 ON THE FILES OF THE FAMILY COURT, THRISSUR**