Jinu Subin v. Subin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 O.P.(FC) NO. 83 OF 2023** **AGAINST THE ORDER DATED 11.01.2023 IN I.A.NOS.2 AND 8 OF 2022 IN O.P.NO.1948 OF 2022 ON THE FILE OF THE FAMILY COURT, THRISSUR** ## **PETITIONER:** **JINU SUBIN AGED 27 YEARS, D/O LATE SUBRAMANIAN, RESIDING IN THE ADDRESS KOOTALA HOUSE, THRITHALLUR P O, VADANAPPILLY VILLAGE, CHAVAKAD TALUK, THRISSUR DISTRICT, NOW RESIDING AT AYYANTHOLE P.O., PIN – 680003.** **BY ADV G.SREEKUMAR (CHELUR)** ## **RESPONDENT:** **SUBIN** **AGED 35 YEARS, S/O GOVINDHAN, RESIDING IN THE ADDRESS MAROLI HOUSE, PUTHURKARA, AYYANTHOLE POST, AYYANTHOLE P O, THRISSUR DISTRICT, PIN – 680003.** **BY ADVS. ANEESH K.M MANOJ SIMON DILEEP CHANDRAN SHASHANK DEVAN** 2 O.P.(FC) No.83 of 2023 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 03.03.2023, THE COURT ON 14.03.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.83 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner is the mother of two girl children, aged 7 years and 3½ years. She filed G.O.P.No.1948 of 2022 before the Family Court, Thrissur for permanent custody of the children. She also has filed I.A.No.2 of 2022 for getting interim custody of the children. In terms of Ext.P2, order dated 22.08.2022 in I.A.No.2 of 2022, interim custody of the children was entrusted to the petitioner. The respondent filed I.A.No.8 of 2022 seeking interim custody of the children. The Family Court passed Ext.P6 common order dated 11.01.2023 in I.A.Nos.2 of 2022 and 8 of 2022, whereby the respondent was allowed to have interim custody of the children from 10.00 a.m. on every first and third Saturdays till 4.00 p.m. on the following Sunday. Interim custody of the children during the first five days of Onam and Christmas holidays and during the first 15 days of mid summer vacation was also allowed in favour of the respondent. The petitioner filed this O.P. under Article 227 of the Constitution of India challenging Ext.P6 common order. 4 ## O.P.(FC) No.83 of 2023 2. On 16.02.2023, notice was ordered to be served on the respondent by Special Messenger. Both parties along with the children were directed to be personally present in court on 17.02.2023. The petitioner along with the children appeared before the court on that date. The learned counsel appeared for the respondent informed his inability to appear on 17.02.2023. On 24.02.2023 the petitioner along with the children and the respondent appeared in person before this Court. After interaction they were referred for counselling before the Family Counselling Centre under the High Court Legal Services Committee. After counselling they reported back at 4.00 p.m. on the same day. We have interacted with the parties and the children and perused the report of the Counsellor placed on record in a sealed cover. Considering the responses of the parties and the suggestion of the Family Counsellor, the petitioner and the respondent along with the children were directed to attend again the counselling centre at 10.15 a.m. on 03.03.2023. 3. In terms of that direction, both the parties and the children attended before the Family Counselling Centre and 5 O.P.(FC) No.83 of 2023 after counselling they appeared before us at 4.00 p.m. We have interacted with them and perused the report of the Counsellor, which was placed on record in a sealed cover. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. The petitioner-wife and the respondent-husband have two tiny children aged about 7 years and 3½ years, both are girls. Following estrangement in the marital relationship between the petitioner and the respondent, M.C.No.113 of 2022 under the provisions of the Protection of Women from Domestic Violence Act, 2005 was filed by the petitioner along with her children before the Judicial First Class Magistrate Court-II, Thrissur. An interlocutory application, C.M.P. No.10394 of 2022, was filed by them claiming a residence order. The learned Magistrate as per Ext.P3 order dated 18.11.2022 granted an order restraining the respondent from committing any domestic violence and from expelling the petitioner and the children from the shared household. 6 ## O.P.(FC) No.83 of 2023 6. It is submitted by the learned counsel appearing for the petitioner that the said house belongs to the respondent and in the light of the said order, the respondent shifted his residence to a lodge. The children were with the respondent at that time. The petitioner, in such circumstances, had filed G.O.P.No.1948 of 2022, and I.A.No.2 of 2022 seeking interim custody of the children. On 22.08.2022 the Family Court intially allowed the respondent to retain custody of the elder child, but later passed the following order in I.A.No.2 of 2022: “Case taken upon today itself on the motion of the respondent's counsel. It is submitted by counsel for both parties that the elder child is not willing to separate the younger one and hence custody of both children can be given to the petitioner/mother. It is directed accordingly and both minors are given in custody of the petitioner/mother.” 7. Later, the respondent filed I.A.No.8 of 2022 for getting interim custody of the elder child. The Family Court considered I.A.Nos.2 of 2022 and 8 of 2022 together and passed the impugned order dated 11.01.2023. As per the said order, the respondent was permitted to have interim custody of both the children from 10.00 a.m. on every first and third 7 ## O.P.(FC) No.83 of 2023 Saturday till 4.00 p.m. on the following Sunday. Interim custody of the children during the first five days of Onam and Christmas holidays and for 15 days during summer vacation was also allowed to the respondent. 8. The grievance of the petitioner is that since the respondent is staying in a lodge, it is against the welfare of the children to grant him overnight custody. The learned counsel appearing for the petitioner would submit that being girl children, their safety and security would be at peril, if they are allowed to stay along with the respondent in a lodge. It is further submitted that the respondent is an electrician by profession and he has to go out during day time in connection with his employment. In such a situation, the order granting overnight custody of the children to him is liable to be set aside. 9. The learned counsel appearing for the respondent would point out the observations of the Family Court in the impugned order. It is observed in the said order that the children are very much affectionate to the respondent. Taking that also into account, the respondent was given interim custody of the children. 8 O.P.(FC) No.83 of 2023 ## 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 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 9 O.P.(FC) No.83 of 2023 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 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 10 O.P.(FC) No.83 of 2023 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. 12. In view of the law laid down in the aforesaid decision, the respondent, who is denied custody of the children, definitely has to have the right of interaction. In that view of the matter, the view taken by the Family Court that a father, who is denied custody of the children, has to be given interim custody during weekends and vacations cannot be said to be incorrect. However, in the facts and circumstances of this case, giving the respondent overnight custody of the children is inappropriate. If such custody is given, it may not be possible to ensure their safety and security. When the mother is available to look after the affairs of the children, it is inappropriate to send the children along with father to a lodge only for the reason of maintaining the emotional bond between the children and the father. We are of the view that the respondent need to be allowed day custody of the children alone. The order dated 11.01.2023 is liable to be modified to 11 ## O.P.(FC) No.83 of 2023 that effect. Accordingly, this Original Petition is disposed of by modifying the common order dated 11.01.2023 in I.A.Nos.2 and 8 of 2022 as follows: - i) the respondent shall be permitted to interact with the children from 11.00 a.m. to 3.00 p.m. on the first and third Saturdays of every month in the premises of the Family Court, Thrissur; and - ii) The respondent is permitted to make audio or video calls with the children between 7.00 p.m. and 7.30 p.m. on every Monday and Wednesday. - Any of the parties can approach the Family Court for modification of the custody order after three months, if there is change in circumstances. The reports of the Counsellor in the sealed covers shall be kept in safe custody by the Registrar (Judicial). ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) No.83 of 2023 ## **APPENDIX OF OP (FC) 83/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1** - **A TRUE COPY OF THE ORIGINAL PETITION FILED BY THE PETITIONER AS GUARDIAN O.P. NO 1948 OF 22 FILED DATED 7.7.22 BEFORE THE FAMILY COURT, THRISSUR.** **EXHIBIT P2** - **A TRUE COPY OF THE ORDER PASSED IN I A NO 2 OF 22 IN G O P NO 1948 OF 22 DATED 22.8.22 ON THE FILE OF THE FAMILY COURT, THRISSUR.** - **EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED IN C M P NO 10394 OF 22 IN M C NO 113 OF 22 DATED 18.11.22 ON THE FILE OF THE JFCM-II, THRISSUR.** - **EXHIBIT P4 A TRUE COPY OF THE I A NO 8 OF 22 IN O P NO 1948 OF 22 FILED DATED 19.10.22 ON THE FILE OF THE FAMILY COURT, THRISSUR.** **EXHIBIT P5** - **A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I A NO 8 OF 22 IN G.O.P NO 1948 OF 22 DATED 30.11.22 ON THE FILE OF THE FAMILY COURT, THRISSUR.** **EXHIBIT P6** - **A TRUE COPY OF THE ORDER PASSED IN I A NO 2 AND 8 OF 22 IN O P NO 1948 OF 22 DATED 11.1.23 ON THE FILE OF THE FAMILY COURT, THRISSUR.**