JIBIN LUKOSE v. JERIN MARY JACOB and JACOB THOMAS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 O.P.(FC) NO. 140 OF 2023** **AGAINST THE ORDER DATED 09.03.2023 IN I.A.NO.1 OF 2023 IN O.P.(G&W) NO.81 OF 2023 ON THE FILE OF THE FAMILY COURT, KOTTAYAM** ## **PETITIONER:** ## **JIBIN LUKOSE** **AGED 37 YEARS, S/O LUKA JOSEPH, MALE NURSE BY PROFESSION, PERMANENTLY RESIDING AT MENACHERIL HOUSE, ATHIRAMPUZHA PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA P.O., ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686562.** ## **RESPONDENTS:** **1 JERIN MARY JACOB, AGED 34 YEARS, D/O JACOB THOMAS, CARE TAKER AT ISREAL, PERMANENTLY RESIDING AT MAMMARAPPALLIL HOUSE, KURIANNOOR P.O., THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT KERALA, PIN – 689550.** **2 JACOB THOMAS, AGED 58 YEARS, PERMANENTLY RESIDING AT MAMMARAPPALLIL HOUSE, KURIANNOOR P.O., THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT KERALA, PIN – 689550.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 27.03.2023, THE COURT ON 10.04.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.140 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner has filed O.P.(G&W) No.81 of 2023 before the Family Court, Kottayam at Ettumanoor. He sought a decree declaring his guardianship and allowing permanent custody of the child, Jovan Jibin. A decree of permanent injunction restraining the respondents from forcibly taking away custody of the child was also sought. In that original petition, the petitioner filed I.A.No.1 of 2023 seeking a temporary prohibitory injunction restraining the respondents from forcibly taking away custody of the child. The Family Court as per the order dated 09.03.2023 dismissed I.A.No.1 of 2023, and further directed the petitioner to return custody of the child to the respondents. The petitioner challenges the said order in this Original Petition filed under Article 227 of the Constitution of India. 2. On 22.03.2023, notice was directed to be served on the respondents by Special Messenger. Both parties were directed to appear in person along with the child before the 3 O.P.(FC) No.140 of 2023 court on 27.03.2023. In terms of the said direction, both parties; the petitioner and the 2[nd] respondent, appeared before this Court in person. The 1[st] respondent is abroad. The petitioner has produced the child. We have interacted with both of them and also the child. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. The child is only 5 years old. Its mother is abroad. The petitioner is the father. He would contend that since the mother is abroad, it is only appropriate for him to have custody. He claims that the child has been with him and the respondents are attempting to forcibly take away the custody of the child. The petitioner would contend that the child has been with him all throughout, and studying in S.F.S.Public School, Ettumanoor. During a few occasions of short duration when the 1[st] respondent-mother was available in station alone the child was with the respondents. The petitioner came to know that the respondents have created some documents to 4 O.P.(FC) No.140 of 2023 show that the child was admitted in a school at Kuriannoor, the place where the respondents reside. Recently the 2[nd] respondent in a friendly manner took the child to his house and returned within a week. Now, there has been an attempt by the 2[nd] respondent to take away the child forcibly. 5. As against the said contentions of the petitioner, the 2[nd] respondent, in his counter affidavit, stated that the child has been with him all throughout whether or not the 1[st] respondent is available in the station. Although admission was taken for the child in S.F.S.School during the academic year 2020-21, the child did not go to school during those periods because of the COVID. In the academic year 2022-2023 the child was enrolled at Good Shepherd English Medium School, Kuriannoor. The child has been attending the class there staying with the respondents. The petitioner reached the house of the respondents and tried to take away the child on a couple of occasions. On 20.01.2023, while the 2[nd] respondent was taking the child to the school in his scooter at about 9.30 a.m., the petitioner, along with two others, waylaid 5 O.P.(FC) No.140 of 2023 him and forcibly took the child away from his custody. He was manhandled also. A crime in that regard was registered from Koipuram Police Station. Its crime No. is 73 of 2023. The crime was registered for offences punishable under Sections 341, 323 and 363 read with Section 34 of the Indian Penal Code, 1860. Immediately thereafter, the petitioner filed O.P.No.81 of 2023 before the Family Court, stating totally false claims and contentions. 6. The Family Court brought the child to the court and interacted. From the disclosure of the child that he had been with his father since 10 days only and considering the attending circumstances, the Family Court concluded that the child was forcibly taken from the custody of the 2[nd] respondent by the petitioner. The learned counsel appearing for the petitioner would assail the said finding pointing out that the documents to show that the child has been studying in S.F.S. Public School, Ettumanoor, were produced, but the Family Court ignored them. It is also contended that the alleged kidnapping is incorrect and the crime was registered absolutely falsely. 6 O.P.(FC) No.140 of 2023 7. We have interacted with the child, the petitioner and the 2[nd] respondent. While the petitioner maintains that the child has been staying along with him, the statement of the 2[nd] respondent is that the interest of the child would be at peril if custody is entrusted to the petitioner. He stated that considering the nature and character of the petitioner, he would not take care of the child. The child expressed his wish to continue with his father. 8. One of the allegations is that the child was even taken to a toddy shop. It is also alleged that the petitioner has been leading a wayward life. When the petitioner procured custody of the child in an illegal manner, continuing custody with him would amount to perpetuating illegality and be detrimental to the welfare of the child. 9. In **Nil Ratankundu and another v. Abhijit Kundu [(2008) 9 SCC 413],** the Apex Court held that principles governing custody of minor children are fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should 7 O.P.(FC) No.140 of 2023 keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor. 8 O.P.(FC) No.140 of 2023 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 to have 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. 11. In **Rohith Thammana Gowda v. State of Karnataka & others [AIR 2022 SC 3511]** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an inquiry regarding custody of 9 O.P.(FC) No.140 of 2023 children. The Apex Court explained how a desire expressed by the child has to be approached. It was held: “8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the 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. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for 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 10 O.P.(FC) No.140 of 2023 paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits.” 12. The Apex Court held that when deciding custody of a child, desire/wish of the child has relevance, but that is not the sole decisive factor. If the child is grown up, its desire has to be given due importance. On the other hand, if the child is of tender age, its desire cannot be given a predominant role in the matter of deciding custody. What is important is the welfare of the child. The court has to look into all the attending circumstances to decide at whose custody the welfare of the child can be best ensured. 13. Here, from the materials available on record, it is evident that the child has been with the 2[nd] respondent and studying in Good Shepherd English Medium School, Kuriyannoor. Although the petitioner has a contention that Crime No.73 of 2023 was falsely registered, the circumstances born out from the records show otherwise. The child stated to 11 ## O.P.(FC) No.140 of 2023 the Judge, Family Court that he was with his father for 10 days. While the child was in the custody of the 2[nd] respondent, the petitioner forcibly had obtained custody. It is an illegal act. Such an illegality cannot be perpetuated or condoned. 14. Once reached in the custody of the father, the child naturally would be accustomed to the circumstances in which he reached. A boy of tender age ordinarily is fond of the heroism of his father. That does not mean that the father’s custody is advantageous to the child. Since the father obtained custody of the child by illegal means, and the child is of tender age, only after an appropriate enquiry into the matter, it can be decided whether he can be given custody. That question shall be decided in the original petition after a proper enquiry. 15. It may be noted that the child while was studying in the Good Shepherd School, at the fag end of the academic year, he was forcibly taken away by the petitioner. Obviously, the child could not have attended the examinations. The petitioner claims that the child was admitted to S.F.S.Public 12 O.P.(FC) No.140 of 2023 School. Going by the statement of the child, 10 days before only the child would have been readmitted to the S.F.S Public School. In such circumstances, we are of the view that the Family Court rightly had rejected his claim for a temporary injunction. 16. While denying the order of injunction, the Family Court directed the petitioner to return custody of the child to the 2[nd] respondent. Ordinarily, granting of such a relief may not be appropriate. But in the matter of custody of a child, the court is exercising _parens patriae_ jurisdiction. When it is found that the petitioner is not entitled to get an order of injunction; since he obtained custody of the child by illegal means, it is only appropriate to consider further at whose custody the welfare of the child can be best ensured. In the light of the discussions made above, we are of the view that the custody of the child shall be returned to the 2[nd] respondent and the order issued by the Family Court in that regard cannot be found fault with. 13 O.P.(FC) No.140 of 2023 17. Accordingly, this Original Petition is dismissed. The petitioner is directed to produce the child before the Family Court, Kottayam at Ettumanor at 11.00 a.m. on 12.04.2023 for being handed over to the 2[nd] respondent. We, however, make it clear that the claim of the petitioner for the custody of the child in O.P.(G&W) No.81 of 2023 shall be decided untrammeled by any of the observations in this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 14 O.P.(FC) No.140 of 2023 ## **APPENDIX OF OP (FC) 140/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** - **TRUE COPY OF THE OP (G&W) 81/2023 ON THE FILES OF FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **EXHIBIT P2** - **TRUE COPY OF IA 1 OF 2023 IN OP (G&W) 81/2023 ON THE FILES OF FAMILY COURT KOTTAYAM AT ETTUMANOOR** **EXHIBIT P3** - **TRUE COPY OF THE COUNTER AFFIDAVIT TO IA 1 OF 2023 IN O.P (G&W) NO. 81/2023 ON THE FILES OF FAMILY COURT, ETTUMANOOR FILED BY THE 2ND RESPONDENT** **EXHIBIT P4** **TRUE COPY OF THE ORDER DATED 09/03/2023 IN IA 1/2023 IN O.P (G&W) NO. 81/2023 ON THE FILES OF FAMILY COURT, ETTUMANOOR.** **EXHIBIT P5** - **TRUE COPY OF THE IA 2 OF 2023 IN O.P (G&W) NO. 81/2023 ON THE FILES OF FAMILY COURT, ETTUMANOOR FILED BY THE 2ND RESPONDENT HEREIN.** - **EXHIBIT P6** **TRUE COPY OF OBJECTIONS IN IA 2 OF 2023 IN O.P (G&W) NO. 81/2023 ON THE FILES OF FAMILY COURT, ETTUMANOOR FILED BY THE 2ND RESPONDENT HEREIN.** **EXHIBIT P7** **TRUE COPY OF THE JUDGMENT DATED 11/09/2013 IN OP (FC) 2551 OF 2013 ON THE FILES OF HIGH COURT OF KERALA.**