Jinil George v. Sofonia Sara Kuruvila

# **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. 81 OF 2023 AGAINST THE ORDER DATED 15.11.2022 IN I.A.NO.5 OF 2022 IN O.P.NO.168 OF 2022 OF THE FAMILY COURT, PALAKKAD** **PETITIONER:** **JINIL GEORGE** **AGED 37 YEARS, S/O K.K.GEORGE, KANJIRATHUMKUDI VEEDU, VALKULAMBU, KORENCHIRA POST, ALATHUR TALUK, PALAKKAD DIST., PIN – 678684.** **BY ADVS. SAJAN VARGHEESE K. LIJU. M.P JOPHY POTHEN KANDANKARY** **RESPONDENT:** **SOFONIA SARA KURUVILA AGED 34 YEARS, D/O P.S.KURUVILA, PULIKKAPINAT VEEDU, PAITTAMKUNNU, DHONI POST, PALAKKAD DISTRICT, PIN – 678009.** **BY ADVS. M. R. SASI N.P.SILPA SREEKUMAR K.V. DHARMYA M.S KAVYA KRISHNAN S.SAJIT SANAL** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 10.04.2023, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.81 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner has filed O.P.No.168 of 2022 before the Family Court, Palakkad seeking to declare him the legal guardian and to get custody of the child, Leona Jinil @ Anvy Rose, born on 10.08.2017. The petitioner filed I.A.No.5 of 2022 in that original petition for getting temporary custody of the child. As per the order dated 15.11.2022, the Family Court disposed of that interlocutory application. The Family Court ordered both parties to abide by the directions in the compromise decree in O.P.No.763 of 2017. The petitioner is aggrieved and hence he filed this Original Petition under Article 227 of the Constitution of India challenging that order. 2. On 16.02.2023, notice was directed to be served on the respondent. On receipt of notice, the respondent entered appearance through her learned counsel. On 31.03.2023, we directed the maternal grandparents, with whom is the child now, to produce the child before the court at 10.15 a.m. on 10.04.2023. The petitioner was also directed 3 O.P.(FC) No.81 of 2023 to appear in Court in person. In terms of the said order, the child was produced by the maternal grandparents. The petitioner appeared in person. After interaction, they were directed to appear before the Family Counselling Centre under the Kerala High Court Legal Services Committee for counselling. 3. They appeared before us after counselling at 3.30 p.m. We interacted with them, including the child again. We perused the report of the Family Counsellor, which was placed on record in sealed covers. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. Marriage of the petitioner and the respondent was solemnized on 23.05.2016. The child, Leona Jinil, was born in that wedlock on 10.08.2017. Their relationship eventually estranged and there arose litigations. The petition filed for divorce, in the matter of custody of the child and for restitution of conjugal rights were considered together. Since 4 O.P.(FC) No.81 of 2023 the parties settled the disputes, a common judgment dated 25.11.2019 was passed in those cases, a copy of which is Ext.P1. The arrangement regarding custody of the child contained in Ext.P1 as agreed to between the parties are as follows: “1. The respondent, the mother of the child, is allowed to retain the minor daughter of the petitioner and the respondent, Leona, in her custody permanently. 2. The petitioner, the father of the child, is allowed to see and interact with the child on all the 2[nd] and the 4[th] Saturdays from 4 pm to 5 pm in the children's park at Palakkad Fort ground. 3. The respondent shall bring the child on all the 2[nd] and the 4[th] Saturdays at 4 pm in the children's park at Palakkad Fort ground and shall leave the child into the custody of the petitioner up to 5 pm by permitting the petitioner, his parents and other relatives to see and interact with the child up to 5 pm. 4. The respondent shall not refuse the gifts, if any, offered by the petitioner to the child. 5. The petitioner shall pay an amount of Rs.500/- as travel expense to the respondent by transferring the same into account of the respondent, bearing No.31245822750 with IFSC Code SBI N0002245 in the Olavakkode branch of State Bank of India. 5 O.P.(FC) No.81 of 2023 6. If any of the parties finds any inconvenience to cause the interaction on the specified days, they shall inform each other either over phone or directly and shall cause the interaction to be completed on the succeeding Saturdays at the same time, at the same place and under the same terms. 7. The petitioner shall provide an amount of Rs.5,00,000/- for the future of the minor child by depositing the same in a reputed financial institution for a period of three years by appointing the respondent as the nominee with the right to collect the interest accrued thereon every month. 8. The petitioner shall hand over the fixed deposit receipt to the respondent on the date of the final hearing of the joint petition for divorce agreed to be filed. 9. The petitioner shall pay maintenance to the respondent and the child at the rate of Rs.4,500/- and Rs.3,000/- respectively per month till the date of the final hearing of the joint petition for divorce agreed to be filed.” 6. The petitioner has filed O.P.No.168 of 2022 claiming custody of the child on the essential ground that the respondent mother went abroad and she left custody of the child with her parents. In I.A.No.5 of 2022 he demanded interim custody of the child on the same grounds. A few 6 O.P.(FC) No.81 of 2023 allegations, including that the name of the child was changed without his permission were also raised by him. The respondent filed a counter statement wherein she maintained that there was no reason to change custody of the child, which is governed by the terms of the decree in O.P.No.763 of 2017. She justified the change of the name of the child also. After hearing both sides, the Family Court took the view that welfare of the child can be safeguarded by retaining the child in the custody of the maternal grandparents. IA.No.5 of 2022 was dismissed as per Ext.P6 order. 7. During interaction, we noticed that the child is reluctant to go along with the petitioner. During the counselling also the same was the attitude of the child. Maternal grandfather, who produced the child, is very much concerned about handing over custody to its father. Considering the age of the child, separation from a parent for a considerable period inevitably would result in an emotional gap and parental alienation. The petitioner stated that during one hour of interaction on Saturdays, as allowed by Ext.P1 7 O.P.(FC) No.81 of 2023 decree, there could not be effective interaction and therefore he could not instill a sense of affection and love in the child. He would state that unless he is able to interact freely, it may not be possible to have an emotional attachment with the child. 8. Now, the respondent mother is abroad. The child is staying with the maternal grandparents. Having the child been along with them throughout, the child would feel such custody convenient and comfortable. But that may not be in the best interest of the child. The wish or desire of the child of tender age, shall not be the sole criteria to decide the custody. 9. 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 enquiry regarding custody of children. The Apex Court also explained as to how far desire of the child has to be given importance. 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 8 O.P.(FC) No.81 of 2023 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 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.” (underline supplied) ## 10. 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 9 O.P.(FC) No.81 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. 11. 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 10 O.P.(FC) No.81 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 11 O.P.(FC) No.81 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. 12. 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. 12 O.P.(FC) No.81 of 2023 13. In the light of the law laid down in the aforesaid decisions, it is not the desire or wish of the child but the welfare of the child shall be of paramount consideration while deciding custody. A child at its tender age should have company of both parents, unless the parent is wholly unworthy, due to some discernible reasons, to have custody of the child. Here, the petitioner-father, who is a bank officer, is free of any such allegations. When the mother is not available, along with the child, it is only appropriate and requisite to allow the father to interact with the child for a reasonable duration. Accordingly, we hold that the child, although not to be given in custody of the petitioner on a permanent basis, temporary custody shall be given to him. 14. The Original Petition is therefore allowed and Ext.P6 order is modified. The custody of the child shall be given to the petitioner from 11.00 a.m. on the second and fourth Saturdays till 4.00 p.m. on the ensuing Sundays in every month. The stipulations in Ext.P1 judgment regarding 13 O.P.(FC) No.81 of 2023 the custody of the child, Leona Jinil @ Anvy Rose stand modified to the above extent. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 14 O.P.(FC) No.81 of 2023 ## **APPENDIX OF OP (FC) 81/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE COMMON ORDER/JUDGMENT PASSED ORIGINAL PETITIONS NO.443/2017, 618/2017, 763/2017 AND 698/2017 ON THE FILE OF FAMILY COURT, PALAKKAD.** **EXHIBIT P2** **TRUE COPY OF THE MEMORANDUM OF ORIGINAL PETITION DATED 09-02-2022 IN OP NO.168/2022 ON THE FILE OF FAMILY COURT, PALAKKAD** **EXHIBIT P3** **TRUE COPY OF THE OBJECTION DATED 2802-2022 FILED IN EXHIBIT P2 PETITION** **EXHIBIT P4** **TRUE COPY OF THE PETITION DATED 13-062022 VIZ. IA NO.5/2022 FILED IN EXHIBIT P2 ORIGINAL PETITION** **EXHIBIT P5** **TRUE COPY OF THE OBJECTION DATED 1910-2022 FILED IN EXHIBIT P4 PETITION** **EXHIBIT P6** **TRUE COPY OF THE ORDER DATED 15.11.2022 PASSED IN EXHIBITS P4 APPLICATION**