Meera v. Rajesh

## **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 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 O.P.(FC) NO. 28 OF 2023** **AGAINST THE ORDER DATED 09.12.2022 IN I.A.NO.2 OF 2022 IN O.P.NO.796 OF 2022 ON THE FILES OF THE FAMILY COURT,** ## **PALAKKAD** ## **PETITIONER:** **MEERA AGED 23 YEARS D/O.MANIKANDAN, R/ A. CHEKKINI, PALLIKKAD, VADAKKENCHERRY.P. O ALATHUR, PALAKKAD, PIN – 678683.** **BY ADV V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENT:** **RAJESH, AGED 36 YEARS, S/O.KRISHNAN R/ A.CHAMAPARAMBU HOUSE, PARUVASSERY POST KANNAMBRA, ALATHUR, PALAKKAD, PIN – 678683.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.28 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. Ext.P4 is the order of the Family Court, Palakkad in I.A.No.2 of 2022 in O.P.No.796 of 2022. It is regarding interim custody of a child named Ajual R., aged 2½ years. The petitioner-mother has filed the said original petition as well as the interlocutory application. As per Ext.P4 order the claim of the petitioner in I.A.No.2 of 2022 to hand over custody of the child to her was declined. She filed this Original Petition under Article 227 of the Constitution of India challenging the said order. 2. Notice was directed to be served on the respondent as per order dated 18.01.2023. Notice was duly served on the respondent, but he did not chose to appear before this Court. 3. Heard the learned counsel appearing for the petitioner. 4. O.P.No.796 of 2022 was filed by the petitioner alleging that the respondent on 19.06.2022 reached her house and took away the child forcibly. The petitioner and the 3 O.P.(FC) No.28 of 2023 respondent have been residing separately for quite sometime following marital disharmony. Although the petitioner attempted to get back custody of the child, she as well as her brother were manhandled by the respondent and he continues to be in custody of the child. Being a breastfeeding child, it is absolutely necessary to give her custody of the child and therefore she has filed O.P.No.796 of 2022 as well as I.A.No.2 of 2022. 5. The respondent had filed counter opposing I.A.No.2 of 2022. The reasons stated by the Family Court for allowing custody of the child to the respondent and also the operative part of the order by which the petitioner is allowed right of visitation are extracted below: “7. What emerging from the above discussion is that, in matters of custody, the welfare of the children is the sole and single yardstick by which the court shall assess comparative merit of the parties contesting the custody. Coming to the facts of present case, the original petition has been field by the petitioner herein, who is none other than the mother of the minor, for permanent custody of the child. Hence, at this stage, I am not discussing anything regarding the merits of the case. 4 O.P.(FC) No.28 of 2023 The male child named Ajual.R was born on 16/03/2020 and now aged 2½ the years old. 8. During the course of hearing, the learned counsel for the petitioner vehemently argued that the child is a breast feeding child and the respondent took the minor child forcibly from the custody of the petitioner and though complaint was given, the police did not take any action. On going through the records, it is seen that the petitioner herein had filed a complaint before the Child Welfare Committee also to get the child back. Considering the above circumstances, I called for a report from the Inspector of Police, Vadakkancherry and Dy.S.P, Alathur and also from the Child Welfare Committee. They filed report. As per the report submitted by the Inspector of Police, Vadakkancherry and Dy.S.P, Alathúr, the crime was registered against the respondent and investigation is going on (Crime No.945/2022). As per report submitted by the Child Welfare Committee, it is reported that the minor child is living with the respondent safely. So, keeping in view of the facts and circumstances of this case, I am not inclined to grant interim custody of the minor child to his mother (petitioner) at present as prayed for. However, the petitioner can be allowed to have the interaction with the child till the disposal of the main petition. 5 O.P.(FC) No.28 of 2023 In the result, petition is allowed in part and the following orders are passed: 1. The petitioner is allowed to have the interaction with the minor child on all 1[st] and 3[rd] Saturdays from 11.30 am to 1.00 p.m till the disposal of the main petition; 2. The respondent is hereby directed to produce the child before the C.M.O of this court on all 1[st] and 3[rd] Saturdays at 11.30 a.m and shall hand over the custody of the child to the petitioner upto 1.00 p.m; 3. The petitioner shall handover the custody of the minor child at 1.00 p.m to the respondent in the presence of the C.M.O; 4. The petitioner shall not cause any annoyance or inconvenience to the child remaining in her custody either by herself or by any of her family members; 5. The prayer of the petitioner for granting temporary custody as prayed for is disallowed.” 6. We find no reason in Ext.P4 order for denying custody of the child to the petitioner. She is the mother. The child was born on 16.03.2020. The petitioner claims that the child is still breastfeeding. The respondent denied the said allegations. However, the reasons stated by the Family Court in the impugned order to allow the respondent-father to have custody of a child aged only 2½ years is not appreciable. It is 6 O.P.(FC) No.28 of 2023 true that both parents have the right to custody of the child, but the welfare of the child has to be given predominance. The said principle was discussed by the learned Judge of the Family Court by referring to the decisions of the Apex Court in **Smriti Madan Kansagra v. Perry Kansagra (2020 KHC 6611 : (2020) 12 SCALE 450]** and **Rosy Jacob v. Jacob A.Chaka Makkal [(1973) 1 SCC 840]** . Although the said principles were considered and rightly had observed that the paramount consideration while granting custody of the child shall be welfare of the child, the view taken by the Family Court does not go in tandem with the said principle. The interim custody of the child should have been given to the mother in the absence of any factor disentitling her from having the custody of the child. The report of the Child Welfare Committee that the child was safe in the custody of the father is not a reason to deny the custody of 2½ year old child to the mother. 7. In the circumstances, we are of the view that Ext.P4 is liable to be set aside. Hence, this Original Petition is 7 O.P.(FC) No.28 of 2023 allowed. Ext.P4 order is set aside. I.A.No.2 of 2022 in O.P.No.796 of 2022 stands allowed. The respondent is directed to hand over custody of the child to the petitioner with immediate effect. The Family Court, Palakkad shall see that the custody of the child is handed over to the petitioner by the respondent within a week. Once the custody is handed over to the petitioner, the respondent shall have right of interaction with the child on every first and third Saturday from 11.00 a.m. to 1.00 p.m. The petitioner shall produce the child before the Chief Ministerial Officer of the Family Court, Palakkad on those days for enabling the respondent to have interaction as aforesaid with the child. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 8 O.P.(FC) No.28 of 2023 ## **APPENDIX OF OP (FC) 28/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE O.P.NO.796/2022 ON THE FILE OF THE FAMILY COURT, PALAKKAD EXHIBIT P2 TRUE COPY OF THE I.A.NO.2/2022 IN O.P. NO. 796/2022 ON THE FILE OF THE FAMILY COURT, PALAKKAD EXHIBIT P3 TRUE COPY OF THE OBJECTION IN I.A.NO.2/2022 IN O.P. NO. 796/2022 ON THE FILE OF THE FAMILY COURT, PALAKKAD EXHIBIT P4 CERTIFIED COPY OF THE ORDER DATED 09.12.2022 IN I.A.NO.2/2022 IN O.P.NO.796/2022 ON THE FILE OF THE FAMILY COURT, PALAKKAD**