Merin Mary Thomas v. KuriaKose K.K.

# **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 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944** **OP (FC) NO.732 OF 2022** **AGAINST EXT.P11 ORDER: THE TRUE COPY OF THE ORDER IN I.A.NO.3 OF 2022 IN O.P.NO.1641 OF 2021 DATED 22.12.2022 ON THE FILES OF THE FAMILY COURT, ETTUMANOOR)** ## **PETITIONER/RESPONDENT/PETITIONER:** ## **MERIN MARY THOMAS** **AGED 37 YEARS** **DAUGHTER OF SRI. M.T. THOMAS VARAKUKALAYIL HOUSE, KALLARA P.O., KALLARA VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, KERALA, PIN - 686611** **BY ADVS. LUKE J CHIRAYIL M.G.SREEJITH P.JAYA ELSA MARY THOMAS AMAL JOSE BIBAS C. BABU JOSEPH MARVEL NORONHA ROJIN DEVASSY** ## **RESPONDENT/PETITIONER/RESPONDENT:** **KURIAKOSE K.K. AGED 41 YEARS** **SON OF SRI. KURIAKO K.K. RESIDING AT KANJIRAMPALA HOUSE, KIDANGOOR P.O., KIDANGOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, KERALA, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER KURIAKO K.K., AGED 71 YEARS SON OF SRI. UTHUP KURIAN, KANJIRAMPALA HOUSE KIDANGOOR P.O.,** 2 O.P.(FC) No.732 of 2022 **KIDANGOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, KERALA, PIN - 686572** **BY ADVS.** **P.C. Haridas Pulickal Chandrasekhara pillai P.S.GOVIND(K/000824/2022)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.732 of 2022 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner filed O.P.No.1641 of 2021 before the Family Court, Kottayam at Ettumanoor seeking permanent custody of the minor child by name Tessa Kuriakose. In that original petition, the respondent herein-father filed I.A.No.3 of 2022, seeking interim custody of the minor child during Christmas vacation of the year 2022. That application was allowed by Ext.P11 order dated 22.12.2022, whereby the respondent-father was granted custody of the minor child from 10.00 a.m on 26.12.2022 till 5.00 p.m on 30.12.2022. As per the said order, the handing over of the minor child shall take place at the premises of the Family Court, Kottayam at Ettumanoor. Challenging the aforesaid order of the Family Court, the petitioner-mother has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. On 30.12.2022, when this original petition came up for admission, this Court admitted the matter on file and 4 O.P.(FC) No.732 of 2022 issued notice to the respondent by speed post. On 30.12.2022, when this original petition came up for admission before the Vacation Bench, the minor child was produced in Court. The Division Bench, having interacted with the minor child, passed the following order: “Having interacted with the child, who was present before us today, we are of the opinion that further proceedings pursuant to Ext.P11 shall be kept in abeyance for a period of two weeks, in view of the fact that the child has expressed clear apprehensions and has informed us that she does not know her father and does not want to stay in his company at this point in time.” 3. Heard the learned counsel for the petitionermother and also the learned counsel for the respondentfather. 4. As already noticed herein before, the interim custody ordered by the Family Court vide Ext.P11 order dated 22.12.2022 in I.A 3 of 2022 was from 10.00 a.m on 26.12.2022 till 5.00 p.m on 30.12.2022. On the ground that the petitioner is yet to be issued with a certified copy of that 5 ## O.P.(FC) No.732 of 2022 order, she filed O.P.No.724 of 2022 before the Vacation Bench, which was disposed of by Ext.P10 judgment dated 27.12.2022. The operative portion of that judgment reads thus: “On a consideration of pleadings and materials on record and taking note of the fact that the petitioner has already applied for the carbon copy of the order passed in I.A.No.3 of 2022 in O.P.(G&W) No.1641 of 2021; we direct the Family Court, Ettumanoor, to issue the carbon copy of the order passed in I.A.No.3 of 2022 in O.P.(G&W) No.1641 of 2021, in accordance with law, today itself. The Family Court is further directed to defer the implementation and enforcement of the order passed in I.A.No.3 of 2022 in O.P.(G&W) No.1641 of 2021 till 30.12.2022.” 5. Thereafter, the petitioner filed this original petition on 29.12.2022, in which this Court granted an interim order on 30.12.2022. At the admission stage, the Vacation Bench interacted with the minor child, since she was present in Court on 30.12.2022. 6. In **Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67]** the Apex Court held that law is well settled by a 6 O.P.(FC) No.732 of 2022 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. The court must therefore be very wary of what is said by each of the spouses. 7. 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 7 O.P.(FC) No.732 of 2022 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 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 8 O.P.(FC) No.732 of 2022 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. 8. 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. In view of the settled legal position, the welfare of the minor being the paramount consideration, the court cannot act upon the suggestions of Mr. John Ekelaar in his Article. The court cannot accept the submission that, while applying the welfare principle, the rights of the mother or father need to be 9 O.P.(FC) No.732 of 2022 protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents” 9. Having considered submissions made by the learned counsel on both sides, we find that since the period stipulated in Ext.P11 order for interim custody of the minor child to the respondent-father is already over, no further orders are necessary in this original petition. In such circumstances, this original petition is disposed of, by making it clear that any application made by the respondent-father for interim custody of the minor child, shall be considered by the Family Court, taking note of the law laid down by the Apex Court in the decisions referred to supra. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV 10 O.P.(FC) No.732 of 2022 ## **APPENDIX OF OP (FC) 732/2022 PETITIONER'S EXHIBITS** - **Exhibit P1** - **THE TRUE COPY OF THE G&W O.P. NO: 1641 OF 2021 DATED 16.12.2021 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER IN O.P (G&W) NO: 1641 OF 2021 DATED 25.10.2022 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **Exhibit P3 THE TRUE COPY OF THE I.A NO: 3/2022 IN O.P (G&W) NO: 1641 OF 2021 DATED 27.10.2022 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **Exhibit P4 THE TRUE COPY OF THE OBJECTION IN I.A NO: 3/2022 IN O.P NO: 1641 OF 2021 DATED 06.12.2022 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **Exhibit P5 THE TRUE COPY OF THE PETITION NUMBERED I.A NO. 4/2022 IN O.P (G&W) NO: 1641 OF 2021 DATED 17.12.2022 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **Exhibit P6 THE TRUE COPY OF THE CERTIFICATE SHOWING THAT THE MINOR CHILD IS A STUDENT OF CHRIST THE KING PUBLIC SCHOOL, BANGALORE WITH ADMISSION NUMBER 242 DATED 16.12.2022 ISSUED BY THE HEADMISTRESS** - **Exhibit P7 THE TRUE COPY OF THE PRESCRIPTION ISSUED IN THE NAME OF THE MINOR CHILD DATED 20.12.2022 BY THE SHISHU CLINIC, BANGALORE** 11 O.P.(FC) No.732 of 2022 - **Exhibit P8** **THE TRUE COPY OF THE POWER OF ATTORNEY PRODUCED BY THE RESPONDENT IN O.P (G&W) NO: 1641 OF 2021 DATED 29.01.2022 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **Exhibit P9 TRUE COPY OF THE UNDATED MEDICAL CERTIFICATE ISSUED BY DR. JEENA BABU IN FAVOR OF TESSA KURIAKOSE** - **Exhibit P10 THE TRUE COPY OF THE ORDER IN O.P. (FC) NO: 724 OF 2022 DATED 27.12.2022 ON THE FILES OF THE HONORABLE HIGH COURT OF KERALA** - **Exhibit P11 THE TRUE COPY OF THE ORDER IN I.A. NO: 3/2022 IN O.P NO: 1641 OF 2021 DATED 22.12.2022 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** - **Exhibit P12 TRUE COMPUTER TYPED COPY OF THE UNDATED INTIMATION RECEIVED FROM THE PRINCIPAL, CHRIST THE KING PUBLIC SCHOOL REGARDING THE CHRISTMAS VACATION** - **Exhibit P13 TRUE COPY OF THE UNDATED EXAMINATION SCHEDULE OF GRADE 6, II UNIT TEST OF CHRIST THE KING PUBLIC SCHOOL** - **Exhibit P14** - **TRUE COPY OF THE CASE STATUS OF O.P. NO. 1641 OF 2021 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR OBTAINED FROM E-COURTS WEBSITE** - **Exhibit P15** - **TRUE COPY OF THE UN-NUMBERED PETITION DATED 27.12.2022 IN O.P. (G&W) NO. 1641 OF 2021 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR**