Lakshmi P.L v. Gireesh Chandran I.S

## **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 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945** **O.P.(FC) NO. 128 OF 2023** **AGAINST THE ORDER DATED 03.03.2023 IN I.A.NO.5 OF 2023 IN O.P.NO.2023 OF 2022 OF THE FAMILY COURT, THRISSUR** ## **PETITIONER:** ## **LAKSHMI P.L** **AGED 30 YEARS, D/O.LEKHA S, "KRISHNA VILASOM, STUDIO ROAD, ESTATE P.O, THIRUVANANTHAPURAM. NOW RESIDING AT C/O.SANAL DAVIS, ARIMBUR HOUSE, KODANNUR.P.O, AMMADAM, THRISSUR, PIN – 680563.** **BY ADV V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENT:** **GIREESH CHANDRAN I.S** **AGED 41 YEARS, S/O.SUNDARESAN NAIR, KIZHAKEVILA VEEDU, OZHUKUPARA ESTATE.P.O, THIRUVANTHAPURAM, PIN – 695019.** **BY ADVS. ANEESH K.M MANOJ SIMON K.B.SUMESH** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 17.03.2023, THE COURT ON 28.03.2023 DELIVERED THE FOLLOWING:** 2 ## O.P.(FC) No.128 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The respondent in O.P.No.2023 of 2022 on the file of the Family Court, Thrissur has filed this Original Petition under Article 227 of the Constitution of India seeking to set aside Ext.P9 order dated 03.03.2022 in I.A.No.5 of 2023 in O.P.No.2023 of 2022. As per the said order, the Family Court directed the petitioner to hand over custody of her minor child, aged 7 years, to the respondent-father, till the disposal of O.P.No.2023 of 2022. The petitioner was allowed visitation right from 10.00 a.m. to 11.30 a.m. on every second Saturday. 2. On 16.03.2023, when this matter came up for consideration, Sri.Aneesh K.M., the learned counsel took notice for the respondent. Having heard the submissions made by the learned counsel on either side, we directed both parties to be present in person in Court along with the child at 10.15 a.m. on 17.03.2023. In obedience to the said direction, the petitioner along with the child and the respondent 3 O.P.(FC) No.128 of 2023 appeared in person before this Court on 17.03.2023. We have interacted with the child, the petitioner and the respondent. During interaction, the child expressed some reluctance to go along with the father. She stated that she has been comfortable in staying with her mother. The father expressed his anguish in continuing the child along with the mother; since she is now leading an adulterous life. The mother stated that she has been residing with a person in a living-together relationship and the child has been comfortably staying along with them. It is further stated that she along with the child has been staying in the residence of one Sri. Sanal Davies, where his parents are also residing. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The Family Court, Thrissur in consideration of the contentions raised by both sides, brought the petitioner, the respondent, and the child in court and interacted with them. They were counselled by the Principal Counsellor attached to 4 ## O.P.(FC) No.128 of 2023 the Court and the report was made available. After taking into account all aspects including the report of the Principal Counsellor, the Family Court passed the impugned order directing the petitioner to hand over custody of the child to the respondent. 5. Ext.A1 produced before the Family Court is a copy of the F.I.R. in the crime that was registered on the basis of a complaint of the respondent that the petitioner and child were missing from his house. Materials on record reveal that the petitioner along with the child went to Thrissur and the police procured them and brought to court. Statements of the petitioner and the child were recorded by the Judicial Magistrate of the First Class (Temporary), Neyyattinkara. Copies of their statements are Exts P2 and P3 produced herein. From the said documents, the statement of the petitioner before us, and also the other materials on record it is seen that she is now residing with one Sanal Davies at his residence. There is no legal relationship between them, whereas, marriage between the petitioner and the respondent 5 ## O.P.(FC) No.128 of 2023 subsists. The petitioner described before us her relationship with Sri.Sanal Davies one of living together. The girl child, who is aged only 7 years, is now residing along with them. 6. The learned counsel appearing for the respondent would submit that not only the parents of the respondent but also the parents of the petitioner are available to take care of the child and they have anxiety about the relationship of the petitioner with a stranger and leaving the child in such an environment. The petitioner would concede that her parents also are not supporting her, but favouring the respondent. From the said facts and circumstances, what emerges is that the child has been residing along with her mother, but the environment in which they are now is not congenial to the well-being and proper upbringing of a girl child. It is true that the child desires to live with her mother and finds comfort in staying with her mother. It is quite natural since she has been accustomed to staying along with her mother. Ordinarily, a girl child would be more attached to the mother, particularly during her tender age. As noted by the Family Court there may be some amount of tutoring to the child also. 6 O.P.(FC) No.128 of 2023 7. In **Rohith Thammana Gowda Vs. State of Karnataka [AIR 2022 SC 3511]** the Apex Court held 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. 8. The Apex Court proceeded to hold 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 7 ## O.P.(FC) No.128 of 2023 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. 9. Therefore, while it is a requirement to give due consideration to the desire of a child, the same cannot be equated to the welfare and best interest of the child. The court in the exercise of its _parens patriae_ jurisdiction shall decide in whose custody the welfare of the child can be best ensured. Based on the desire of the child that the child wants to live along with the father or the mother, the court cannot jump a decision. The court instead has to consider all the attending circumstances before taking a decision in the matter. ## 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 8 ## O.P.(FC) No.128 of 2023 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 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 9 O.P.(FC) No.128 of 2023 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 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. 10 ## O.P.(FC) No.128 of 2023 12. Ordinarily, a girl child of tender age shall be allowed to be in the custody of the mother. But that is not the right of the mother. As held in the aforesaid decisions, custody of a child is not a matter of the right of parents. The paramount consideration shall always be the welfare of the child. As pointed out above, the child is now residing along with the mother in the house of his male partner with whom she has no legal relationship. It is not possible to ensure the safety and security of the child if she is with the mother, in the present circumstances. On the other hand, the parents of both the petitioner and the respondent are available to look after the affairs of the child in the event of sending her into the custody of the respondent. In such circumstances, we are of the view that the direction of the Family Court in Ext.P9 order is not perverse or patently illegal. We do not find any reason in the exercise of the power of this Court under Article 227 of the Constitution of India to interfere with the said order. 11 O.P.(FC) No.128 of 2023 13. The petitioner is allowed visitation right once in a month. We are of the view that being the mother she has to be allowed more opportunities to interact with the child. Therefore, we modify the said condition and the petitioner is allowed to have interaction with the child between 10.00 a.m. and 12.30 p.m. on alternate Sundays at the house of the petitioner's parents. The respondent shall facilitate such interaction. The petitioner is also allowed to make audio/video calls to the child every day between 7.00 p.m. and 7.30 p.m. Subject to the aforesaid modifications to the order dated 03.03.2023 in I.A.No.5 of 2023 in O.P.No.2023 of 2022 of the Family Court, Thrissur, this Original Petition is dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) No.128 of 2023 ## **APPENDIX OF OP (FC) 128/2023** **PETITIONER EXHIBITS** - **EXHIBIT.P1 TRUE COPY OF THE I.A.NO.5/2023 IN O.P. NO. 2023/2022 ON THE FILE OF THE FAMILY COURT, THRISSUR** **EXHIBIT.P2 TRUE COPY OF THE OBJECTION IN I.A.NO.5/2023 IN O.P. NO. 2023/2022 ON THE FILE OF THE FAMILY COURT, THRISSUR DATED 10.01.2023** - **EXHIBIT.P3 TRUE COPY OF THE STATEMENT OF THE PETITIONER DATED 27.11.2021 IN CRIME NO.2234/2021 OF NEMOM POLICE STATION** - **EXHIBIT.P4 TRUE COPY OF THE STATEMENT OF MINOR CHILD, APARNA CHANDRAN IN CRIME NO.2234/2021 OF NEMOM POLICE STATION DATED NIL** - **EXHIBIT.P5 TRUE COPY OF THE INTERIM ORDER IN W.P. (C)NO.30233/2021 OF THIS HON'BLE COURT DATED 23.12.2021** - **EXHIBIT.P6 TRUE COPY OF THE INTERIM ORDER IN W.P. (C)NO.30233/2021 OF THIS HON'BLE COURT DATED 18.01.2022** - **EXHIBIT.P7 TRUE COPY OF THE ID CARD OF MINOR CHILD OF THE PETITIONER ISSUED FROM C.A.L.P SCHOOL, VENGINISSERY DATED NIL** - **EXHIBIT.P8 PHOTOGRAPHS OF THE MINOR CHILD OF PETITIONER** - **EXHIBIT.P9 TRUE COPY OF THE ORDER DATED 03.03.2023 IN I.A.NO.5/2023 IN O.P. NO. 2023/2022 ON THE FILE OF THE FAMILY COURT; THRISSUR**