Kemy Hashim v. Zirajudeen T.S.

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 3[RD] DAY OF APRIL 2023/13TH CHAITHRA, 1945 OP (FC) NO.135 OF 2023 AGAINST THE ORDER DATED 13.03.2023 IN I.A.No.2/2023 IN OP No.90/2020 OF FAMILY COURT, ERNAKULAM ## PETITIONER/RESPONDENT: KEMY HASHIM, AGED 33 YEARS, D/O T.M. HASHIM, NOW RESIDING AT THARAYIL HOUSE, WARD NO.2, KADUNGALLUR PANCHAYATH, MUPPATHADOM P.O., ALUVA, ERNAKULAM, PIN – 683110. BY ADVS. C.Y.VINOD KUMAR K.A.JALEEL ## RESPONDENT/PETITIONER: ZIRAJUDEEN T.S., AGED 39 YEARS, S/O.SEETHI, THYPARAMBIL HOUSE, THALAYOLAPARAMBU P.O., VAIKOM TALUK, KOTTAYAM, PIN – 686605. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 31.03.2023, ALONG WITH OP (FC).153/2023, THE COURT ON 03.04.2023, DELIVERED THE FOLLOWING: O.P(F.C) Nos.135 & 153 of 2023 - 2 - IN THE HIGH COURT OF KERALA AT ERNAKULAM **==> picture [51 x 9] intentionally omitted <==** THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN **==> picture [8 x 8] intentionally omitted <==** THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 3[RD] DAY OF APRIL 2023/13TH CHAITHRA, 1945 OP (FC) NO.153 OF 2023 AGAINST THE ORDER/JUDGMENT DATED 22.12.2022 IN I.A. NO.7034/2022 AND ORDER DATED 13.03.2023 IN I.A.NO.2/2023 IN OP 90/2020 OF FAMILY COURT,ERNAKULAM PETITIONER/RESPONDENT IN I.A.7034/2022 & PETITIONERS IN IA 2/2023 & PETITIONER IN OP: SIRAJUDEEN T.S, AGED 38 YEARS, S/O.SEETHI, THAIPARAMBIL HOUSE, THALAYOLAPARAMBU P/O, VAIKOM TALUK, KOTTAYAM., PIN – 686605. BY ADVS. C.JOSEPH ANTONY ASHA TREESA JOSE JOBIN JOSE P. RESPONDENT/PETITIONER IN I.A.7034/2022 & RESPONDENT IN I.A.2/23 & RESPONDENT IN OP: KEMY HASHIM, AGED 32 YEARS, D/O T.M HASHIM, THARAYIL HOUSE, SREE NARAYANA GURU CROSS ROAD, KAUSALYANAGAR, ERNAKULAM 682026, NOW RESIDING AT THARAYIL HOUSE, WARD NO.2, KADUNGALLUR PANCHAYAT, MUPPATHADOM (P/O), ALUVA, ERNAKULAM, PIN – 683110. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 31.03.2023, ALONG WITH OP (FC).135/2023, THE COURT ON 03.04.2023, DELIVERED THE FOLLOWING: O.P(F.C) Nos.135 & 153 of 2023 - 3 - ## **JUDGMENT** ## P.G.Ajithkumar, J O.P. No.90 of 2020 was filed by the father of 8 year old girl child, Manha Fatima, before the Family Court, Ernakulam seeking to get a decree allowing him permanent custody of the child. 2. I.A.No.181 of 2020 was filed by him in the original petition seeking interim custody of the child. As per the order dated 31.01.2020, right of interaction was allowed to him. Every Saturday from 10:00 a.m to 5:00 p.m, he was allowed to interact with the child in the premises of Family Court, Ernakulam. 3. The mother filed I.A.No.7034 of 2022 seeking a modification of the said order. On allowing her application as per order dated 02.12.2022, time for interaction was modified to 9:30am to 1:30 p.m. The father filed I.A.No.2/2023 on 02.02.23 for an order granting him interim custody of the child for 45 days during the summer vacation, 2023. The Family Court allowed the petition in part and, the father is allowed to get custody of the child from 10:30 a.m on 01.04.2022 to 5:00 p.m on 11.04.2023. O.P(F.C) Nos.135 & 153 of 2023 - 4 - 4. The mother filed O.P.(FC) No.135 of 2023 challenging the said order. She wants to set aside the said order and overnight stay of the child with the father shall be avoided. Father filed O.P.(FC) No.153 of 2023, since he is dissatisfied in refusing his request for custody for 45 days. 5. On 29.03.2023, when these matters came up for consideration, we had directed both parties to appear before this Court along with the minor child at 10:15 am on 31.03.2023. In terms of the said order, both parties were personally present in the court along with the minor child at 10:15 am on 31.03.2023. After interacting with them, we directed them to appear before the Family Couselling Centre under the Kerala High Court Legal Service Committee at 11:45 a.m for counselling. They appeared before the Family counsellor and after counselling they appeared before us at 3:30 p.m. on the same day. We have interacted with them again. We perused the report of the counsellor placed before us in sealed cover. 6. Heard the learned counsel appearing for the petitioner in O.P.(FC) No.135 of 2023, who is the respondent O.P(F.C) Nos.135 & 153 of 2023 - 5 - in O.P.(FC) No.153/2023 and also the learned Senior Counsel appearing for the opposite party. 7. Parents of Manha Fathima got married on 20.04.2014. The chid was born on 15.03.2015. The marriage was dissolved by the pronouncing Thalaq. Eventualy both of them remarried. The child has been with the mother. Alleging that the mother was not taking care of the child and she has always been on facebook or whasapp resulting in neglect of the child, the father filed O.P No.90 of 2020 for getting permanent custody of the child. He filed I.A.No.181 of 2020 for getting interim custody. The Family Court did not allow him to have custody of the child, but he was allowed to interact with the child every Saturday between 10 am to 5 pm. The mother complaining that the child could not attend Madrassa, request to modify the timing of interaction. The Family Court as per order in I.A.No.7034 of 2023 modified the order by changing the time for interaction as 9:30 a.m to 1:30 pm. 8. I.A.No.2 of 2023 was filed with a specific request that custody of the child shall be given to the father for 45 days during the ensuing summer vacation. The mother would O.P(F.C) Nos.135 & 153 of 2023 - 6 - contend that even without affording an opportunity to her to file an objection, the Family Court allowed I.A.No.2 of 2023 and, therefore, she was compelled to file O.P.(FC) No.135 of 2023 before this Court. The learned cousel appearing for the mother would contend that the child is hesitant to go along with the father, who is a busy business man, having no time to take care of the affairs of the child. The learned counsel also alleged that on account of the cruelty and harassment by the father, the mother had to leave the marital company with him and considering the said nature, giving him overnight custody of the child is certainly against the interest of the child. 9. The learned Senior Counsel appearing for the father would submit that the child has been very comfortable and happy in the company of the father and, therefore, giving him custody of the child will only enhance her quality of life. The learned Senior Counsel further would submit that both parents have to be given equal opportunity to interact with the child and that would only ensure the intellectual, and moral development of a child. While, welfare of the child is of paramount consideration, the rights of both parents to have O.P(F.C) Nos.135 & 153 of 2023 - 7 - the custody of the child cannot be ignored. Therefore, in the view of the learned Senior Counsel, the father should have been given custody for the whole period of 45 days; even more. The order of the Family Court dated 13.03.2023 is, therefore, sought to be modified. The learned Senior Counsel relied on the decisions in **Nil Ratankundu and another v. Abhijit Kundu, 2008 (9) SCC 413,** to fortify that contention. The Apex Court in that decision quoted with approval the observation in **Kamla Devi v. State of H.P. AIR 1987 HP 34** that while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of O.P(F.C) Nos.135 & 153 of 2023 - 8 - the child whose welfare requires that he be in custody of one parent or the other." 10. The Apex Court in **Nil Ratankundu** after referring to the principle laid down in **Kamla Devi** referred to above, held that principles governing custody of minor children is 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 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 O.P(F.C) Nos.135 & 153 of 2023 - 9 - 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. 11. 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. O.P(F.C) Nos.135 & 153 of 2023 - 10 - The court must therefore be very wary of what is said by each of the spouses. 12. 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 circumstances that one parent O.P(F.C) Nos.135 & 153 of 2023 - 11 - 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. 13. 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 O.P(F.C) Nos.135 & 153 of 2023 - 12 - 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. (underline supplied) 14. 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 explained as to how far desire of the child has to be given importance. It was held as follows: “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, O.P(F.C) Nos.135 & 153 of 2023 - 13 - 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) 15. A child has to grow feeling love and affection from both parents and also in an environment free from the influences of hates and hatred. If a parent, either the father or the mother, induces a feeling of hatred against the other parent, that will create a dilemma in the psyche of the child, which eventually will form part of his character. If such a psychological adversity in the mind of the child is infused, the parent knowingly or unknowingly makes the child an unworthy citizen. Parents may have reasons to distance each other, but that shall not reflect in the life of the children. 16. As held by the Apex Court in **Rohith Thammana Gowda (supra)** the wish/desire of the child cannot take precedence over what would, in the view of the court, be the O.P(F.C) Nos.135 & 153 of 2023 - 14 - welfare of the child. It is true that the child has expressed during our interaction and also before the counsellor that she does not want to go along with the father. We cannot forget the fact that hitherto the child has been with the mother and the child is produced before the court by the mother. The child naturally has an inclination to be with the mother. As pointed out in **Nil Ratankundu** (supra), the court has to consider all circumstances while deciding the custody. It is seen that during interaction on Saturdays, the child used to freely mingle with the father. In such circumstances, it is only appropriate to allow him to have custody of the child during vacation for a few days. Father re-married and he is living along with the present wife. So there need not be any apprehension that the affairs of the child would get neglected. 17. Accordingly, we hold that the view taken by the Family Court to give custody of the child to father during the vacation is not incorrect. At the same time, if the child is given in custody of the father for such a continuous period from 01.04.2023 to 11.04.2023, there is chance for some sort of stress to the child on account of the sudden O.P(F.C) Nos.135 & 153 of 2023 - 15 - separation from the mother. In such circumstances, we are of the view that the child can be given in the custody of the father in two spells. We accordingly, direct that the mother shall give custody of the child, Manha Fatima to the father at 10:30 am. on 05.04.2023 till 2:00 p.m on 08.04.2023 and from 10:00 am. on 19.04.2023 till 2:00 p.m on 22.04.2023. The custody of the child shall be given and get back in the premises of the Family Court, Ernakulam. These original petitions are disposed of, accordingly. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G.AJITHKUMAR, JUDGE** ww O.P(F.C) Nos.135 & 153 of 2023 - 16 - ## APPENDIX OF OP (FC) 135/2023 PETITIONER'S EXHIBITS: - EXHIBIT P1 COPY OF THE O.P. NO.90/20 ON THE FILES OF THE HON'BLE FAMILY COURT, ERNAKULAM. - EXHIBIT P2 COPY OF THE I.A. NO.181/2020 IN OP NO.90/2020 ON THE FILES OF THE HON'BLE FAMILY COURT, ERNAKULAM. - EXHIBIT P3 COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A. NO. 181/2020 IN OP NO.90/2020 DATED 12/12/20 ON THE FILES OF THE HON'BLE FAMILY COURT, ERNAKULAM. - EXHIBIT P4 COPY OF THE I.A. NO.7034/22 IN OP NO. 90/2020 ON THE FILES OF THE HON'BLE FAMILY COURT, ERNAKULAM. - EXHIBIT P5 COPY OF THE ORDER DATED 02/12/22 IN I.A. NO.7034/22 IN OP NO.90/2020 OF THE HON'BLE FAMILY COURT, ERNAKULAM. EXHIBIT P6 COPY OF THE I.A. NO.2/23 IN OP NO. 90/2020 DATED 02/02/23 FILED BY THE RESPONDENT. - EXHIBIT P7 COPY OF THE PROCEEDINGS DATED 13/3/23 IN I.A. NO.2/23 IN OP NO.90/20 OF THE HON'BLE FAMILY COURT, ERNAKULAM. EXHIBIT P8 CERTIFIED COPY OF THE ORDER DATED 13/3/23 IN I.A. NO.2/23 IN OP NO. 90/20 OF THE HON'BLE FAMILY COURT, ERNAKULAM. O.P(F.C) Nos.135 & 153 of 2023 - 17 - ## APPENDIX OF OP (FC) 153/2023 ## PETITIONER'S EXHIBITS: |EXHIBIT-P1|TRUE COPY OF THE O.P.NO.90/2020| |---|---| ||FILED BY THE PETITIONER BEFORE THE| ||FAMILY COURT, ERNAKULAM.| |EXHIBIT-P2|TRUE COPY OF THE ORDER OF THE| ||HONOURABLE FAMILY COURT AT ERNAKULAM| ||IN IA 181 OF 2020 DATED 31.01.2020.| |EXHIBIT-P3|TRUE COPY OF I.A.NO.3539/2022 IN| ||OP.NO.90/2020 ON THE FILE OF THE| ||FAMILY COURT, ERNAKULAM FILED BY THE| ||PETITIONER, DATED 13.06.2022.| |EXHIBIT-P4|TRUE COPY OF I.A.NO.5947/2022 IN| ||OP.NO.90/2020 ON THE FILE OF THE| ||FAMILY COURT, ERNAKULAM FILED BY THE| ||PETITIONER, DATED 26.09.32022.| |EXHIBIT-P5|TRUE COPY OF IA NO.7034 OF 2022| ||FILED BY THE RESPONDENT IN| ||OP.NO.90/2020 ON THE FILE OF THE| ||FAMILY COURT, ERNAKULAM, DATED| ||01.10.2022.| |EXHIBIT-P6|TRUE COPY OF THE OBJECTION FILED BY| ||THE PETITIONER IN IA.NO.7034/2022 IN| ||OP.NO.90/2020 ON THE FILE OF THE| ||FAMILY COURT, ERNAKULAM, 03.11.2022.| |EXHIBIT-P7|TRUE COPY OF THE ORDER OF THE| ||HONOURABLE FAMILY COURT IN I.A 7034| ||OF 2022 DATED 02.12.2022.| |EXHIBIT-P8|TRUE COPY OF THE I.A 2 OF 2023 IN| ||OP. NO.90/2020 ON THE FILE OF THE| ||FAMILY COURT, ERNAKULAM FILED BY THE| ||PETITIONER, DATED 02.02.2023.| O.P(F.C) Nos.135 & 153 of 2023 - 18 - EXHIBIT-P9 TRUE COPY OF THE ORDER DATED 13.03.2023 IN I,A.NO.2/2022 IN OP.NO. 90/2020 ON THE FILE OF THE HONOURABLE FAMILY COURT, ERMNAKULAM.