Mat.Appeal Nos. 479 of 2021 & 741 of 2021, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA, 1945** ## **MAT.APPEAL NO. 479 OF 2021** **AGAINST THE DECREE & JUDGMENT DTD 24.2.2021 IN OP 1071/2015 OF FAMILY COURT, ATTINGAL** ## **APPELLANTS/ADDL.PETITIONERS & MINOR PETITIONERS 2 & 3:** - **1 SUMARAJAN,AGED 60 YEARS S/O. RAGHAVAN, PARAMKIMAMVILA VEEDU, VAKKOM DESOM AND VILLAGE, THIRUVANANTHAPURAM DISTRICT-695308.** - **2 SRUTHY S.RAJ,AGED 27 YEARS W/O. AKHIL, PARAMKIMAMVILA VEEDU, VAKKOM DESOM AND VILLAGE, THIRUVANANTHAPURAM DISTRICT-695308.** - **3 SILPA S.RAJ,AGED 24 YEARS D/O. SUMARAJAN, PARAMKIMAMVILA VEEDU, VAKKOM DESOM AND VILLAGE, THIRUVANANTHAPURAM DISTRICT-695308.** - **4 VYGA MICKY,AGED 11 YEARS (MINOR), D/O. DECEASED SOUMYA, PARAMKIMAMVILA VEEDU, VAKKOM DESOM AND VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695308.** - **5 VYSHNAV MICKY,AGED 9 YEARS (MINOR), D/O. DECEASED SOUMYA, PARAMKIMAMVILA VEEDU, VAKKOM DESOM AND VILLAGE, THIRUVANANTHAPURAM DISTRICT-695308. (MINOR APPELLANTS 4 AND 5 REPRESENTED BY THEIR NEXT FRIEND -1ST APPELLANT-GRANDFATHER)** **BY ADVS.M.RAJENDRAN NAIR M.SANTHY, MAHENDRAKUMAR K.** ## **RESPONDENT/RESPONDENT IN O.P.:** **MICKY PREMCHAND,AGED 42 YEARS, S/O. P.S.PREMCHAND, RESIDING AT HEERA KINARA CLASSIC FLAT 7 A2, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004, NOW RESIDING AT HEERA CRESENT FLAT 3C, YMR JUNCTION, NANTHANCODE, THIRUVANANTHAPURAM-695003.** **BY ADVS.M.KIRANLAL R.RAJESH (VARKALA)** **T.S.SARATH** **MANU RAMACHANDRAN SAMEER M NAIR GEETHU KRISHNAN HARSHA SUSAN SAM** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 06/12/2023, ALONG WITH Mat.Appeal.741/2021, THE COURT ON 13.12.2023 DELIVERED THE FOLLOWING:** 2 **Mat.Appeal Nos.479 and 741 of 2021** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA,** ## **1945** **MAT.APPEAL NO. 741 OF 2021** **AGAINST THE COMMON JUDGMENT DATED 24.2.2021 IN OP(G&W) 2388/2013 OF FAMILY COURT, ATTINGAL** ## **APPELLANT/PETITIONER:** **MICKY PREMCHAND, AGED 38 YEARS S/O. P.S. PREMCHAND, HEERA KINARA CLASSIC FLAT 7 A2, KESAVADASAPURAM, THIRUVANANTHAPURAM-695 004, NOW RESIDING AT HEERA CRESENT FLAT 3 C, YMR JUNCTION, NANTHANCODE, THIRUVANANTHAPURAM-695 003** **BY ADVS.R.RAJESH (VARKALA) MANU RAMACHANDRAN M.KIRANLAL T.S.SARATH SAMEER M NAIR** **RESPONDENTS/RESPONDENTS & LEGAL HEIRS OF DECEASED 2ND RESPONDENT:** - **1 RAGHAVAN SUMARAJAN,AGED 61 YEARS S/O. RAGHAVAN, PARAMKIMAMVILA,NILAKKAMUKKU, VAKKOM P.O, THIRUVANANTHAPURAM DISTRICT-695 308** - **2 SYAMALA RAJAN, AGED 50 YEARS W/O. RAGHAVAN SUMARAJAN, PARAMKIMAMVILA, NILAKKAMUKKU, VAKKOM P.O, THIRUVANANTHAPURAM DISTRICT-695 308 (DIED).** **BY ADVS.M.RAJENDRAN NAIR M.SANTHY** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 06.12.2023, ALONG WITH Mat.Appeal.479/2021, THE COURT ON 13.12.2023 DELIVERED THE FOLLOWING:** 3 **Mat.Appeal Nos.479 and 741 of 2021** **AMIT RAWAL & C.S.SUDHA, JJ.** **----------------------------------------------------Mat.Appeal Nos.479 and 741 of 2021 ----------------------------------------------------Dated this the 13[th] day of December, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** These appeals under Section 19(1) of the Family Courts Act, 1984, have been filed against the common order dated 24/02/2021 in O.P. (G&W)No.2388/2013 and O.P.No.1071/2015 on the file of the Family Court, Attingal. The petitioner/father in O.P.(G&W)No.2388/2013 is the appellant in Mat.Appeal No.741/2021 and the petitioners in O.P.No.1071/2015 are the appellants in Mat.Appeal No.479/2021. The parties in these appeals will be referred to as described in O.P. (G&W)No.2388/2013. 2. O.P.(G&W)No.2388/2013 was filed by the father and natural guardian of the minor children, named Vaiga Micky and Vaishnav Micky. The respondents are the parents of deceased Soumya, the wife of the petitioner and mother of the minor children. The marriage of the petitioner with Soumya was solemnised on 17/09/2013 as per the rites and customs of the community to which they belong. In the wedlock, the couple have two 4 ## **Mat.Appeal Nos.479 and 741 of 2021** children aged 3 years and 8 months and 1 year and 3 months. After the marriage, the petitioner and Soumya resided together in a flat at Kesavadasapuram, Thiruvananthapuram, for a period of one month and thereafter they left for Sharjah where the petitioner was running a business. They continued in Sharjah till the year 2012. On 01/11/2012 the petitioner along with his family returned home and they lived together till 17/09/2013. The petitioner and his wife were leading a happy and contented life. However, Soumya was quite worried that she could not continue her education and make a better life. She was under depression and hence she committed suicide. A crime was registered against the petitioner, pursuant to which he was arrested and remanded to custody. Thereafter he was released on bail. When the petitioner was arrested, the custody of the minor children was handed over by the police to the respondents. The respondents are quite old and do not have the means or income for maintaining the children. The petitioner being the natural guardian, is entitled to their custody. 3. The respondents who are the parents of late Soumya entered appearance and filed objection in which they contended that their daughter had not committed suicide. On the other hand, she had died under suspicious circumstances. Several wounds were seen on the body of 5 ## **Mat.Appeal Nos.479 and 741 of 2021** Soumya and on the body of the minor children also. The marital life of the petitioner and Soumya was never cordial. The petitioner was quite cruel and he regularly used to physically and mentally harass Soumya as well as the children. The petitioner always entertained doubts about his wife. The petitioner had only completed his Xth Standard whereas Soumya was an academically brilliant student who had secured quite high marks for her degree course. The petitioner is an accused in the criminal case registered in connection with the death of his wife. For the welfare and well-being of the children it would not be conducive to give custody of the children to the petitioner and hence the respondents contended that the petitioner is not entitled to the relief prayed for. 4. O.P.No.l071/2015 was filed claiming recovery of gold ornaments and money. The first petitioner is the mother of deceased Soumya and petitioners 2 and 3 are her minor children. According to the petitioners, at the time of marriage, Soumya had been given 54 sovereigns of gold ornaments. The respondent was given ₹1 lakh as pocket money. The marital life of Soumya with the respondent was never cordial or peaceful. The respondent continuously harassed her mentally and physically. Soumya was academically brilliant and her ambition was to become a Junior Scientist. When the proposal for the marriage of the 6 ## **Mat.Appeal Nos.479 and 741 of 2021** respondent had come, the respondent and his family had agreed to make arrangements for Soumya to continue with her higher education. However after the marriage, the respondent did not permit her to pursue her higher education. After two months of marriage, the respondent took Soumya along with him to Sharjah. He used to severely beat up Soumya and her children. The gold ornaments and the money given to the respondent were misappropriated by the respondent. The respondent is also a drunkard. After the registration of Crime No.1583/2013 against the respondent for the offences punishable under Sections 498A, 306 IPC etc., the custody of the children have been given to the first petitioner and her husband. As the gold ornaments and money have been misappropriated by the respondent, the petition seeking return of the same. 5. The respondent filed objection denying the allegations contained in the petition. Soumya did wear some gold ornaments at the time of the marriage. But the respondent is unaware of its weight or purity. No amount was given by the parents of Soumya as alleged in the petition. The respondent had never demanded any dowry. Soumya was never harassed either physically or mentally. Soumya was quite depressed and she used to take some medicines every night before going to bed. She was having some relationship with her male friends and when this was 7 ## **Mat.Appeal Nos.479 and 741 of 2021** questioned she used to behave like a mentally deranged person. She used to pickup quarrels with the respondent for no reasons. The respondent is not responsible for the death of Soumya who committed suicide. Soumya had never entrusted her gold ornaments or the money with him. Before they left for Sharjah, Soumya entrusted all her gold ornaments to her parents. As the respondent has not misappropriated the gold ornaments or money of Soumya, the petitioners are not entitled to any of the reliefs prayed for. 6. On completion of pleadings, the parties went to trial. Both the cases were consolidated and tried jointly. O.P.(G&W)No.2388/2013 was treated as the main case and evidence adduced by both sides. The petitioner in O.P.(G&W)No.2388/2013 was examined as PW1 and Exts.A1 and A2 were marked on his side. On the side of the petitioners in O.P.No.1071/2015, RW1 was examined and Exts.B1 to B3 were marked. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, by the impugned judgment dismissed O.P.No.1071/2015. O.P.(G&W)No.2388/2013 has been partly allowed. The claim of the petitioner for permanent custody of the minor children has been declined and the petitioner granted visitation right on every Saturdays from 11 a.m. to 1 p.m. Aggrieved, both the parties have come up in appeal. 7. The only point that arises for consideration is whether there is 8 ## **Mat.Appeal Nos.479 and 741 of 2021** any infirmity in the findings of the trial court calling for an interference by this Court. 8. Heard both sides. 9. It was quite persuasively and strenuously argued by the learned counsel appearing for the petitioner/father in O.P.(G&W)No.2388/2013 that be being the natural guardian, is legally entitled to get permanent custody of his two minor children. He has been acquitted in the crime case alleging commission of the offences punishable under Sections 306, 498A IPC etc. The said crime was registered on the basis of false allegations made by the parents of deceased Soumya. The children needs to be brought up under the care and protection of the father. However, the trial court without taking into consideration the welfare and well-being of the children, has wrongly granted only visitation right to the petitioner and hence the judgment needs to be interfered with, argues the learned counsel for the petitioner. _Per contra_ it was submitted by the learned counsel for the respondents that giving permanent custody of the minor children to the petitioner would not be in the interest of the welfare and well-being of the children. The petitioner had always treated Soumya, the mother of the minor children as well as the minor children cruelly. He also used to beat up the minor children and in support of this argument, reference was made 9 ## **Mat.Appeal Nos.479 and 741 of 2021** to Exts.B3 and B4 photographs of the children which show the injuries sustained by them as a result of the petitioner physically assaulting them. Exts.B5 and B6 are the copies of the outpatient cards issued by the Taluk Head Quarters Hospital, Chirayinkeezhu, on 18/09/2013 where the children were treated for the injuries sustained by them. According to the respondents, the petitioner, a person with criminal background, cannot be given the custody of the minor children. 10. On going through the impugned judgment we find that the trial court had interacted with the children and then the latter expressed reluctance to go with their father. The children expressed their desire to continue their residence and stay with their maternal grandfather, namely, RW1. The second respondent, maternal grandmother, died during the pendency of the proceedings. They also expressed fear in joining their father. The family court relying on the dictums in **Elizabeth Dinshaw v. Arvand M.Dinshaw, AIR 1987 SC 3** ; **Goverdhan Lal v. Gajendra Kuma, AIR 2002 Raj 148** ; **Nil Ratan Kundu v. Abhijit Kundu, (2008)9 SCC 413** and **Gaytri Bajaj v. Jiten Bhalla, AIR 2013 SC 102** held that it is the welfare and well-being of the children that is of paramount importance in cases of this nature and hence declined the claim of the petitioner for permanent custody of the minor children. 10 ## **Mat.Appeal Nos.479 and 741 of 2021** 11. In **Elizabeth Dinshaw** ( _Supra_ ) it has been held that whenever a question arises before Court pertaining to custody of minor children, the matter is not be decided on consideration of legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. 12. In **Nil Ratan Kundu** ( _Supra_ ) it has been held that the object and purpose of the Guardians and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of the ward's health, maintenance and education. The power and duty of the court under the Act is the welfare of the minor. In considering the question of welfare of a minor, due regard has of course to be given to the right of the father as natural guardian, but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. Children are not mere chattels, nor are they toys for their parents. The absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions, must yield to the consideration of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of society. 13. In **Gaytri Bajaj** ( _Supra_ ) it has been held that the desire of the child coupled with the availability of a conducive and appropriate 11 ## **Mat.Appeal Nos.479 and 741 of 2021** environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the custody of a child. 14. As noticed earlier, the trial court did interact with the children. The children were in a position to comprehend the questions put to them by the court and give cogent answers to the same. The trial court was certainly right in relying on the aforesaid dictums and conclude on the basis of his interaction with the children that it would be conducive for the welfare and well-being of the children to continue their stay with the maternal grandfather. It is true that the petitioner is the father and the natural guardian of the children. But it would be too traumatic to send the children with him, especially when they have expressed reluctance and fear in joining their father. We do not find any reasons to disagree with the findings and conclusions arrived at by the learned trial Judge and hence we find no grounds for interference in the matter. 15. As far as the claim for gold ornaments and money is concerned, the petitioners do not have a consistent case. The trial court is seen to have analysed the pleadings and evidence in detail and concluded that the claim has not been established. We do not find any infirmity 12 ## **Mat.Appeal Nos.479 and 741 of 2021** regarding the findings of the trial court on the said aspect also calling for an interference by this Court. In the result, both the appeals are dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/ 13 **Mat.Appeal Nos.479 and 741 of 2021** ## **APPENDIX OF MAT.APPEAL 479/2021** **APPELLANT'S ANNEXURES Annexure A1 CERTIFIED COPY OF JUDGMENT IN FAMILY COURT, ATTINGAL DATED 24/02/2021.**