Josey Dominic v. Binolin George

# **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 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA,** ## **1944** **MAT.APPEAL NO. 81 OF 2022** **OP 60/2020 OF FAMILY COURT, PALA** ## **APPELLANT/PETITIONER** JOSEY DOMINIC, AGED 36 YEARS S/O.DOMINIC,VAZHAYIL HOUSE, SREEKANDAMANGALAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK686562. BY ADVS. THOMAS J.ANAKKALLUNKAL ABISHEK JOHNY NIRMAL CHERIYAN VARGHESE ## **RESPONDENT/PETITIONER** BINOLIN GEORGE @ BABY, D/O.GEORGE, PUNNATHANATHU HOUSE, POOVARANI KARA, POOVARANI VILLAGE,MEENCHIL TALUK-686577. BY ADVS. MANSOOR.B.H. SAKEENA BEEGUM LIBIN JOSEPH THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2022, ALONG WITH Mat.Appeal.92/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Mat.Appeal Nos.81 & 92 of 2022 ## **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 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944** **MAT.APPEAL NO. 92 OF 2022** **OP(G&W) 60/2020 OF FAMILY COURT, PALA** ## **APPELLANT/RESPONDENT** BINOLIN GEORGE, AGED 36 YEARS D/O.BABY @ GEORGE, PUNNATHANATHU HOUSE, POOVARANI KARA, POOVARANI VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, BIMEESH GEORGE, AGED 35 YEARS, S/O.BABY @ GEORGE, PUNNATHANATHU HOUSE, POOVARANI KARA, POOVARANI VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADVS. MANSOOR.B.H. SAKEENA BEEGUM LIBIN JOSEPH ## **RESPONDENT/PETITIONER** JOSEY DOMINIC, AGED 37 YEARS S/O.DOMINIC, VAZHAYIL HOUSE, SREEKANDAMANGALAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. BY ADVS. Thomas J Anakkallunkal 3 Mat.Appeal Nos.81 & 92 of 2022 ABISHEK JOHNY(K/1223/2019) NIRMAL CHERIYAN VARGHESE(K/2389/2021) JAYARAMAN S.(K/1244/2019) **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2022, ALONG WITH Mat.Appeal.81/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 Mat.Appeal Nos.81 & 92 of 2022 **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ. ----------------------------------------------------Mat.Appeal Nos.81 & 92 of 2022 ----------------------------------------------------Dated this the 25[th] day of October, 2022** ## **JUDGMENT** ## Ajithkumar, J. Correctness and legality of the judgment in O.P. No.60 of 2020 on the file of the Family Court, Pala are under challenge in these Appeals preferred by the respective parties, under Section 19 of the Family Courts Act, 1984. The petitioner in the OP, who is the father of the child, filed Mat.Appeal No.81 of 2022 and the respondent-mother filed Mat.Appeal No.92 of 2022. 2. On 2.2.2022 Mat.Appeal No.81 of 2022 was admitted to file and notice was directed to be served on the respondent. The respondent entered appearance through her counsel. On 04.02.2022 notice in Mat.Appeal No.92 of 2022 was directed to be served on the respondent therein. On 11.02.2022, both matters were considered together. Considering the allegations raised by the mother that the 5 Mat.Appeal Nos.81 & 92 of 2022 minor child, who born in the wedlock of the petitioner and the respondent, was sexually abused by the father, this Court issued a direction for investigation into the matter. The order reads thus : “These appeals are filed by the father and mother who are wrangling for the custody of the child. They impugned the judgment of the Family Court, Pala. The mother's objection in giving custody to the father, is on the ground that the child has been sexually abused by the father. Ettumanoor Police has registered a case as Crime No.138 of 2022. The CWC, Kottayam is also conducting an enquiry. Nowa-days we often see many false cases registered against fathers, in order to deprive them custody of the child. We don't know whether this is one of such case. The alarming increase of such cases is disturbing the conscience of this Court as well. It is appropriate that the report from the CWC as well as the police is placed before this Court. We Direct the CWC, Kottayam and the SHO, Ettumanoor to place a report before this Court with regard to the investigation conducted in this matter.” 3. Based on the said direction, report of enquiry was placed on record before the Court. The parties were directed 6 Mat.Appeal Nos.81 & 92 of 2022 to be present before the Court on 14.02.2022. The child was also directed to be produced. The mother was permitted to join online since she was abroad. On 14.2.2022 after considering the material on record and after interacting with the parties and the child, the child was allowed to be in custody of the father for a week with a direction to the Child Welfare Committee, Kottayam to oversee the custody with the father. By subsequent orders also the father was allowed to have the custody of the child overnight for a few days. 4. Heard the learned counsel appearing for the father as well as the mother. 5. O.P.No.60 of 2020 was filed by the father under Sections 7, 8 and 10 of the Guardian and Wards Act, 1890. Upto the age of 3½ years the child was with him. The mother, who was abroad most of the said period, used to have interacted with the child and when she returns home, she used to reside along with him and the child. Initially the mother was working in Saudi Arabia. She returned in December, 2018 and thereafter she had been residing along with the father and the child, at his home. There arose marital discord and that 7 Mat.Appeal Nos.81 & 92 of 2022 resulted in the mother shifting her residence along with child to her parental home. It was in February, 2019. In September 2020, she went to United Kingdom for employment leaving the child with her parents. In such circumstances, the father filed OP.No.60 of 2020 claiming custody of the child. The child was born on 16.11.2015. 6. Mother filed objection contending that for the welfare of the child, she has to be continued along with her parents. Apart from the parents, her brother and his wife are available to look after the affairs of the child. She was admitted in a reputed School and for the convenience of her studies also she had to be continued with her parents. She further claimed that she used to contact the child over phone every day and she is very happy to be with the grandparents. 7. The Family Court tried the matter and at the trial, PW1, the father was examined and the mother as RW1, and RWs 2 to 4 as witnesses on her side were examined. Exts.A1 to A6 and B1 to B23 were marked. The Family Court considered the entire evidence in detail and came to the conclusion that the child has to be in the custody of the 8 Mat.Appeal Nos.81 & 92 of 2022 mother despite the fact that she is abroad. However, intermittent over night custody was allowed to the father. The arrangements made by the Family Court in regard to the custody of the child are as follows :- (a) In the result, the OP is allowed partly and the petitioner is allowed to have interim custody of the minor child Andria Rose Josey, born on 16.11.2015, on second Saturday and adjacent Sunday of every month and mid summer school vacation and Onam and Christmas holidays. The respondent has to give custody of the child as mentioned above. The custody shall be handed over to both sides in a place which is convenient to both parties. (b) The petitioner, father, shall be at liberty to contact the minor child through phone and also through video call at 6 PM to 8 PM on every Wednesday. (c) In case of violation of the order by the respondent for any reason regarding handling over the temporary custody of the minor cild, her right for custody of the minor as per the judgment will stand forfeited. The RW1, brother of the respondent as a power of attorney holder, he too have the responsibility to follow the order as the 9 Mat.Appeal Nos.81 & 92 of 2022 child might be in his hand, when the respondent is in abroad.” 8. The learned counsel appearing for the father submits that the evidence on record would show that the interest of the child is not safe at the hands of her grandparents, brother and aunt. Hence, the impugned judgment is sought to be set aside. The learned counsel would point out that RW2, who is the uncle of the child and his wife would manipulate things and even may attempt to misuse the child to meet their ill-motives. It is not safe to leave the child in their custody. The father is very much available in Station and therefore, it is just and appropriate to entrust custody of the child with the father especially when the mother is not available in Station. 9. This Court as per order dated 11.02.2022 and 14.2.2022 after perusal of the report submitted by the police and the Child Welfare Committee, allowed the child to be in custody of the father for a few days. There was no complaint from the part of the mother regarding such custody with the father. It is true that the mother is abroad and the father is 10 Mat.Appeal Nos.81 & 92 of 2022 available in Station and therefore it would be convenient for him to take care of the affairs of the child. The learned counsel appearing for the father also contended that it is the right of the father to have the custody of the child when immediate presence of the mother is not available. 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 11 Mat.Appeal Nos.81 & 92 of 2022 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 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 12 Mat.Appeal Nos.81 & 92 of 2022 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 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. The court cannot accept the position that, while applying the welfare principle, 13 Mat.Appeal Nos.81 & 92 of 2022 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. 13. The question requires to be considered is as to stay of the child with whom; either the mother or the father, is in the best interest of the child. She is a school going child. Her studies are to be given much importance. She is now studying in a reputed School near the parental house of the mother. Grandparents and other relatives of the mother are available to take care of the child. It is in evidence that the mother used to contact the child on daily basis and takes care of the affairs of the child. Taking note of such aspects and considering the entire evidence on record, the Family Court concluded that for the welfare of the child, she has to be in the custody of the mother in her parental home and periodical temporary custody was allowed to the father. 14. Having anxiously gone through the entire evidence on record, we are of the view that the directions of the Family Court with regard to the custody of the child in the impugned 14 Mat.Appeal Nos.81 & 92 of 2022 judgment do not require any interference. Sufficient provisions are provided in the impugned judgment itself as to the remedies available in case of non-compliance of the said directions. We observe that any violation of the said directions entail the party aggrieved to approach the Family Court. In the circumstances, we find no merit in both the appeals. Accordingly appeals are dismissed. ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 15 Mat.Appeal Nos.81 & 92 of 2022 ## **APPENDIX OF MAT.APPEAL 81/2022** ANNEXURE Annexure 1 A TRUE COPY OF THE COMPLAINT DATED 21/1/2022 SUBMITTED BY THE APPELLANT BEFORE THE SUPERINTENDENT OF POLICE, KOTTAYAM. 16 Mat.Appeal Nos.81 & 92 of 2022 ## **APPENDIX OF MAT.APPEAL 92/2022** ANNEXURES Annexure A - Annexure B - Annexure C - Annexure D - Annexure E - Annexure F TRUE COPY OF ADMISSION CARD ISSUED FROM WELLSPRING CENTRE FOR CHILD AND ADULT MENTAL CARE. TRUE COPY OF COMPLAINT WAS PREFERRED BEFORE THE SUPERINTENDENT OF POLICE, KOTTAYAM ON 15.01.2022. - TRUE COPY OF ANOTHER COMPLAINT WAS PREFERRED BEFORE THE SUPERINTENDENT OF POLICE, KOTTAYAM ON 22.01.2022. - TRUE COPY OF THE COMPLAINT PREFERRED BEFORE THE CHILD WELFARE COMMITTEE IN THIS REGARD DATED 23.01.2022. TRUE COPY OF THE COMPLAINT PREFERRED BEFORE THE SHO, ETTUMANOOR POLICE STATION. - TRUE COPY OF THE FIR NO.0138/2022 OF ETTUANOOR POLICE STATION DATED 26.01.2022 HAS BEEN REGISTERED AGAINST THE RESPONDENT/PETITIONER/FATHER, JOSEY DOMINIC.