JIBITHA v. DIYOL

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941** **OP (FC).No.47 OF 2020** **AGAINST THE ORDER IN IN I.A.NO.1162/2019 IN GOP 467/2019 DATED 0601-2020 OF FAMILY COURT,THRISSUR** ## **PETITIONER/S:** **JIBITHA, AGED 31 YEARS, D/O.JANARDHANAN, PATTIKKARA HOUSE, ANJOORKUNNU VILLAGE, KIZHOOR DESOM AND PO., KUNNAMKULAM TALUK-680523.** **BY ADVS. SRI.PREMCHAND M. SMT.K.ANITHA JOHN SMT.K.R.CHITHRA** ## **RESPONDENT/S:** **DIYOL,** **AGED 35 YEARS, S/O.SUKUMARAN, CHEMBIL HOUSE, KANDANASSERY VILLAGE, NAMBAZHIKKAD DESOM AND P.O., KUNNAMKULAM TALUK-680602.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(FC).No.47 OF 2020 2** ## **JUDGMENT** ## **Dated this the 28th day of January 2020** ## **C.S.DIAS, J.** The petitioner is the respondent in I.A.No.1162/2019 in GOP No.467/2019, on the file of Family Court, Trissur. The respondent in this original petition had filed the above application seeking interim custody of his minor son Dhanvin and permission to interact with his younger son Sidharth during holidays and vacation periods. 2. In the application filed before the Family Court, the respondent had, _inter alia_ , pleaded that, after the birth of the younger child, the petitioner refused to return to the matrimonial home. Subsequently, there was a mediation, and a rapprochement was effected. Immediately after conceiving the younger child, the petitioner went to her parental home and thereafter, has refused to resume co- habitation. The respondent is anxious to look after to the welfare of the children, but the ## **OP(FC).No.47 OF 2020 3** petitioner is not permitting the same. Therefore, interim custody of the older child may be given to him, and he be permitted to interact with the younger child. 3. The application was opposed by the petitioner, who filed a written objection, _inter alia_ , contending that the respondent is an alcoholic. Subsequent to the separation between them, there was a settlement before the Police, and the older child was agreed to be given on every Friday. However, the respondent's close friend Jayesh abused the child, and on a complaint by the petitioner, Crime No.93/2019 was registered by the Guruvayoor Police Station, for offences punishable under POCSO Act and under Section 377 of IPC against Jayesh. Hence custody of the child shall not be given to the petitioner. The petitioner hence prays that the application may be dismissed. **==> picture [358 x 12] intentionally omitted <==** application and the counter filed, and also ## **OP(FC).No.47 OF 2020 4** after interacting with the child, who did not raise any complaint against the father, held that by merely raising allegations of sexual assault against the respondent's friend, the respondent cannot be restricted from having interim custody and visitation rights of his children. 5. Accordingly, the Family Court allowed I.A.No.1162/2019 by granting interim custody of the older child to the respondent from 11 a.m. of every 2[nd] Saturday till 3 p.m. on the following Sunday, with visitation right from 11 am to 1 pm on every 4[th] Sunday. Likewise, the respondent was permitted to interact with the younger child from 10 am to 11 am on every 2[nd] Saturday and from 11 am to 1 pm on every 4[th] Sunday. 6. It is challenging the above order this original petition is filed under Article 227 of the Constitution of India, contending that the impugned order passed by the Family Court is erroneous and improper and is liable to be ## **OP(FC).No.47 OF 2020 5** set aside. 7. This Court in _**Suhara and Others v.**_ _**Muhammed Jaleel**_ [ _**2019 (2) KLT 960]**_ has held that, even if one of the parents is accused of an allegation in a crime under the POCSO Act, is no assurance to a Family court that the allegation is true. The Court has to consider the paramount welfare and interest of the child while granting custody of the child to such parent, and further that the registration of the crime is not a bar in granting the parent access and visitation right of the child. 8. The Hon'ble Supreme Court in _**Anjali**_ _**Kapoor vs. Rajiv Baijal [(2009) 7 SCC 322]**_ has categorically declared the law that in a battle for custody of the child, Court should see what would best serve the welfare and interest of the child, which is the soul and predominant criteria and not the legal rights of the warring parents. 9. In a most recent decision by the ## **OP(FC).No.47 OF 2020 6** Hon'ble Supreme Court in _**Yashita Sahu vs State**_ _**of Rajasthan and others [2020 SCC OnLine (SC)**_ _**50]**_ rendered on 20.1.2020, has declared as follows: _“18. The child is the_ _victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that 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 the custody of the child. The court must therefore be very vary of what is said by each of the spouses._ _19. A child, especially a child of tender years requires the love, affection, company, 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_ ## **OP(FC).No.47 OF 2020 7** _inanimate object which can be tossed from one parent to the other. Every separation, 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 the 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 the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.”_ ## **OP(FC).No.47 OF 2020 8** 10. Undisputedly, in the present case the allegation is that, the respondent's friend and neighbour attempted to abuse the child and he is accused in POCSO case, therefore, the child shall not be given to the respondent. In view of the categoric declaration of law in the authoritative precedents cited supra, we are unable to accept the contentions that the handing over of the custody of the older child to the respondent would be detrimental to the paramount welfare and best interest of the older child, and that the respondent should be denied visitation rights of the younger child. 11. The learned Judge of the Family Court had interacted with the older child and found that he has no complaint to go with his father and that there is no harm if the older child is being sent with the father on every 2[nd] Saturday till the following Sunday. Similarly, the father has been given visitation right to see the younger child also on every 2[nd] Saturday and 4[th] Sunday. The ## **OP(FC).No.47 OF 2020 9** granting of interim custody and visitation rights would only benefit their paramount welfare and best interest. It is the welfare of the children that is to be looked into and not the rights and defences of the quarrelling parents. 12. We do not find any ground warranting interference with the impugned order invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The original petition is without merit. Accordingly, the Original Petition is dismissed. ## **Sd/-** **K.HARILAL** **JUDGE** **Sd/-** **C.S.DIAS** **JUDGE** uu **OP(FC).No.47 OF 2020 10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OP.NO.467/2019 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR.** **EXHIBIT P2 TRUE COPY OF THE IA.NO.1162/2019 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE INTIMATION GIVEN BY DR.PFIZER TO THE SI OF POLICE KUNNAMKULAM.** **EXHIBIT P5 TRUE COPY OF THE FIR NO.93/2019 OF GURUVAYUR POLICE STATION. EXHIBIT P6 TRUE COPY OF THE CASUALTY REGISTRATION CARD ISSUED BY GOVT. MEDICAL COLLEGE HOSPITAL THRISSUR. EXHIBIT P7 TRUE COPY OF THE OUT PATIENT REGISTRATION CARD ISSUED BY GOVT. MEDICAL COLLEGE HOSPITAL THRISSUR. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 1.3.2019 IN CMP.NO.1086/2019 IN MC.NO.13/2019 OF THE JFCM COURT, KUNNAMKULAM. EXHIBIT P9 TRUE COPY OF THE REPORT SUBMITTED BY THE GURUVAYUR POLICE BEFORE THE ADDITIONAL DISTRICT AND SESSIONS COURT, THRISSUR. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 6.1.2020 IN IA.NO.1162/2019 IN GOP.NO.467/2019 OF THE FAMILY COURT THRISSUR.**