Minu E. Mathew vs Rakesh Jose

# **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 8[TH] DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944 O.P.(FC) NO. 345 OF 2022** **AGAINST THE ORDER DATED 25.04.2022 IN I.A.NO.12 OF 2022 IN O.P.(G&W) NO.574 OF 2019 OF THE FAMILY COURT, PALA PETITIONER:** **MINU E. MATHEW, AGED 32 YEARS, D/O CAPTAIN MATHEW VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, MATHEW VARGHESE, AGED 61 YEARS, S/O VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN – 682507.** **BY ADVS. NIRMAL V NAIR MANU TOM THOMAS M.ANEESH ARATHI PRABHAKARAN** **RESPONDENT:** **RAKESH JOSE, S/O JOSEKUTTY, AGED 34 YEARS, KAYATHINKARA HOUSE, KATTAPANA VILLAGE, UDUMBANCHOLA TALUK, KATTAPANA SOUTH P.O., IDUKKI DISTRICT, PIN – 685515.** 2 O.P.(FC) Nos.345, 347 & 348 of 2022 **BY ADVS. Abdul Rasac ABDUL RAOOF PALLIPATH K.R.AVINASH** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 28.10.2022, ALONG WITH OP (FC).347/2022, 348/2022, THE COURT ON 08.11.2022 DELIVERED THE FOLLOWING:** 3 O.P.(FC) Nos.345, 347 & 348 of 2022 ## **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 8[TH] DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944** **O.P.(FC) NO. 347 OF 2022** **AGAINST THE ORDER DATED 25.04.2022 IN I.A.NO.2 OF 2021 IN O.P.(G&W) NO.651 OF 2021 OF THE FAMILY COURT, PALA PETITIONERS:** **1 MINU E. MATHEW AGED 32 YEARS, D/O CAPTAIN MATHEW VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, MATHEW VARGHESE, AGED 61 YEARS, S/O VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN – 686507.** - **2 MATHEW VARGHESE,** **AGED 61 YEARS, S/O VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN – 686507.** **BY ADVS.** **NIRMAL V NAIR MANU TOM THOMAS M.ANEESH ARATHI PRABHAKARAN** 4 O.P.(FC) Nos.345, 347 & 348 of 2022 ## **RESPONDENT:** **RAKESH JOSE** **S/O JOSEKUTTY, AGED 34 YEARS, KAYATHINKARA HOUSE, KATTAPANA VILLAGE, UDUMBANCHOLA TALUK, KATTAPANA SOUTH P.O., IDUKKI DISTRICT, PIN – 685515.** **BY ADVS. ABDUL RASAC ABDUL RAOOF PALLIPATH K.R.AVINASH** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 28.10.2022, ALONG WITH OP (FC).345/2022 AND CONNECTED CASES, THE COURT ON 08.11.2022 DELIVERED THE FOLLOWING:** 5 O.P.(FC) Nos.345, 347 & 348 of 2022 ## **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 8[TH] DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944** **O.P.(FC) NO. 348 OF 2022 AGAINST THE ORDER DATED 25.04.2022 IN I.A.NO.3 OF 2022 IN O.P.(G&W) NO.480 OF 2019 OF THE FAMILY COURT, PALA PETITIONER:** **MINU E. MATHEW, AGED 32 YEARS, D/O CAPTAIN MATHEW VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, MATHEW VARGHESE, AGED 61 YEARS, S/O VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN – 686507.** **BY ADVS. NIRMAL V NAIR MANU TOM THOMAS M.ANEESH ARATHI PRABHAKARAN** **RESPONDENT:** **RAKESH JOSE AGED 33 YEARS, S/O JOSEKUTTY, KAYATHINKARA HOUSE, KATTAPANA VILLAGE, UDUMBANCHOLA TALUK, KATTAPANA SOUTH P.O., IDUKKI DISTRICT, PIN – 685515.** 6 O.P.(FC) Nos.345, 347 & 348 of 2022 **BY ADVS. ABDUL RASAC ABDUL RAOOF PALLIPATH K.R.AVINASH** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 28.10.2022, ALONG WITH OP (FC).345/2022 AND CONNECTED CASES, THE COURT ON 08.11.2022 DELIVERED THE FOLLOWING:** 7 O.P.(FC) Nos.345, 347 & 348 of 2022 ## **JUDGMENT** ## Ajithkumar, J. These Original Petitions under Article 227 of the Constitution of India are filed by the mother of minor children Jayden Joseph Rakesh, aged 5 years and Jerami Mathew Rakesh, aged 3 years. The petitioner challenges common order dated 25.04.2022 of the Family Court, Pala in I.A.No.12 of 2022 in O.P.(G&W) No.574 of 2019, I.A.No.2 of 2021 in O.P.(G&W) No.651 of 2021 and I.A.No.3 of 2022 in O.P.(G&W) No.480 of 2019. 2. On 16.06.2022, these Original Petitions were admitted. Notices were ordered to be served on the respondent. Operation of the impugned order was stayed. However, the order of the Family Court dated 20.12.2021, which allowed the respondent to have visitation right to the younger child was directed to be continued. As per the order dated 20.07.2022 both sides were directed to attend the Ernakulam Mediation Centre on 27.07.2022. Mediation, however, failed. 8 O.P.(FC) Nos.345, 347 & 348 of 2022 3. The respondent-father filed I.A.No.3 of 2022 in each of these Original Petitions seeking interim custody of the children during Onam holidays. As per the order dated 31.08.2022 interim custody of the children was given to the respondent from 2.30 p.m. on 07.09.2022 to 5.00 p.m. on 10.09.2022. The respondent was directed to get custody and return the children at the residence of the petitioner-mother. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. The petitioner is the mother. She is now in Canada. Children are in the custody of their grandparents at their residence at Kanjirappally. The respondent is the father. He is working as an Assistant Professor in Viswajyothi Engineering College, Vazhakulam. He is a resident of Kattappana. Marriage of the petitioner and the respondent was solemnized on 16.02.2016. The petitioner begotten Jayden on 02.08.2017 and Jerami on 04.12.2019. Following the marital discord, they have been living separate. The children were with the 9 O.P.(FC) Nos.345, 347 & 348 of 2022 petitioner. Following the dispute between the parties regarding custody of the children, the petitioner filed O.P.(G&W) No.480 of 2019 before the Family Court, Pala for permanent custody of the elder child. The respondent filed O.P.(G&W) No.574 of 2019 for getting permanent custody of the elder child. He also filed O.P.(G&W) No.651 of 2021 for getting interim custody of the younger child. 6. Parties had arrived at a settlement regarding the custody of the elder son on 11.11.2019. During that period the petitioner went to Bengaluru for higher studies. When the respondent approached the Family Court, Pala for getting more frequent opportunities to contact the children, as per Ext.P4 order, the Family Court accorded permission to the respondent to a limited extent. Later, the petitioner went abroad. The respondent therefore filed I.A.No.8 of 2021 in O.P.(G&W) No.574 of 2019 seeking interim custody of the elder son. As per order dated 20.12.2021, Ext.P7, the respondent was granted permission to visit the child on first, second and fourth Sundays at St.Dominic Cathedral Church, 10 O.P.(FC) Nos.345, 347 & 348 of 2022 Kanjirappally. The said order was apparently a consent order. However, the respondent challenged the said order by filing O.P.(FC) No.66 of 2022 before this Court under Article 227 of the Constitution of India. As per Ext.P8 judgment dated 16.03.2022 that Original Petition was dismissed without prejudice to the right of the petitioner to approach the Family Court seeking modification of Ext.P7 order as allowed under law. He thereafter filed interlocutory applications, on which the impugned order was passed. 7. The learned counsel appearing for the petitioner would submit that the Family Court, Pala, after hearing both sides, concluded that there was no change in circumstances after passing Ext.P7 order. But, however, the directions in the order were modified. When Ext.P8 judgment enables modification only if there was change in circumstances, the Family Court ought not to have ordered any modification to Ext.P7 order. It is also contended that considering the distance between the residences of the petitioner and the respondent, and the fact that the elder son has classes in the 11 O.P.(FC) Nos.345, 347 & 348 of 2022 school, the respondent should not have been allowed to take the children to his residence, which is 70 kms. away. Permission given to the respondent to interact with the children through video call or other electronic means three days in a week also adversely affects the studies and mental health of the children. The learned counsel accordingly would submit that Ext.P11 order has to be set aside being perverse and illegal. 8. The learned counsel appearing for the respondent, on the other hand, would contend that when mother of the children are abroad, the father, who is available in station, has every right to get custody of the children. The children are to be allowed to interact with the father and the mother in order to instill in them a sense of security and a feeling of love and affection. Hence, it is contended that the impugned order, Ext.P11, does not require any interference. 9. As per Ext.P11, the respondent is allowed to take the children on every Friday between 5.00 p.m. and 6.00 p.m. from the residence of the respondent and give back on 12 O.P.(FC) Nos.345, 347 & 348 of 2022 the next day before 6.00 p.m. The respondent is also allowed to interact with the children between 6.00 p.m. and 7.00 p.m. through video call or other electronic means, three days a week. The parties were allowed to choose other convenient mode for the purpose, on their mutual consent also. 10. It is true that there is a distance of 70 kms. from the residence of the petitioner, where the children are residing along with the grandparents, to the residence of the respondent. As per Ext.P11 order, interim custody given to the respondent is from 5.00 p.m. on Friday till 6.00 p.m. on Saturday. Video call between 6.00 and 7.00 p.m, on three days every week is also allowed. ## 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 13 O.P.(FC) Nos.345, 347 & 348 of 2022 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. 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 14 O.P.(FC) Nos.345, 347 & 348 of 2022 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. 15 O.P.(FC) Nos.345, 347 & 348 of 2022 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 of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. 14. When the mother is not available, the father, who is available in station, has to be given more opportunity to interact with the children, so that an emotional bondage between the children and father could be developed, which is helpful for proper upbringing of the children. 15. The children were produced before us on 28.10.2022 by the grandfather. The respondent was also present. We have interacted with the children, the respondent and the grandfather. Children were allowed to be with the 16 O.P.(FC) Nos.345, 347 & 348 of 2022 father from 10.15 to 11.45 a.m. We noticed that the children have been comfortable in the company of the father. That would indicate that the father is affectionable to the children, and his interaction will help the children to have a physiological support and develop confidence. 16. Since the mother is abroad, the opportunity for the children to interact with her is limited. It may be quite inappropriate and not in the interest of the children to leave them in the exclusive custody of grandparents. In the facts and circumstances of the case, we are of the view that allowing the respondent to have weekend custody of the children, as ordered by this Family Court, is certainly for the welfare of the children. It is true that the Ext.P7 order was passed on consent. When the welfare of the children is the paramount consideration while considering their interim custody, the consent of the parents shall not stand in the way of the court making any modification to the custody order. As held by the Apex Court in the aforesaid decisions, children should get love and affection from both their parents. In that 17 O.P.(FC) Nos.345, 347 & 348 of 2022 view of the matter, the directions in Ext.P11 order are quite just and legal. 17. We are of the view that the travel by the children for some distance once in a week or spending a few minutes to make video calls to the father three days a week, are not wasteful exercise, but will certainly ensure their welfare. In the circumstances, we find no reason to interfere with Ext.P11 order. The Original Petitions are, therefore, dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 18 O.P.(FC) Nos.345, 347 & 348 of 2022 ## **APPENDIX OF OP (FC) 345/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 A TRUE COPY OF THE O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** **EXHIBIT P2** - **A TRUE COPY OF THE INTERIM ORDER DATED 4-9-2019 IN I.A. NO. 980/2019 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** - **EXHIBIT P3 A TRUE COPY OF THE AGREEMENT DATED 1111-2019 ENTERED INTO BETWEEN THE PARTIES** - **EXHIBIT P4 A TRUE COPY OF THE COMMON ORDER DATED 30-7-2020 IN I.A. NO. 1/2020 AND I.A. NO. 3/2020 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** **EXHIBIT P5 A TRUE COPY OF THE I.A. NO. 8/2021 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** - **EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO. 8/2021** - **EXHIBIT P7** **A TRUE COPY OF THE ORDER DATED 20-122021 IN I.A. NO. 8/2021 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** **EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DATED 163-2022 IN O.P.(FC). NO. 66/2022 ON THE FILES OF THIS HONOURABLE COURT** - **EXHIBIT P9** **A TRUE COPY OF THE I.A. NO. 12/2022 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** 19 ## O.P.(FC) Nos.345, 347 & 348 of 2022 **EXHIBIT P10** - **A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO. 12/2022 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** **EXHIBIT P11** **A TRUE COPY OF THE ORDER DATED 25-42022 IN I.A. NO. 12/2022 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** **RESPONDENT EXHIBITS** **EXHIBIT R1(A)** **TRUE COPIES OF THE PHOTOGRAPHS SHOW SOME OF THE HAPPY MOMENETS OF THE CHILDREN WITH THE PETITIONER** 20 O.P.(FC) Nos.345, 347 & 348 of 2022 ## **APPENDIX OF OP (FC) 347/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE O.P. NO. 651/2021 ON THE FILES OF THE FAMILY COURT, PALA EXHIBIT P2 A TRUE COPY OF THE I.A. 2/2021 IN O.P. NO. 651/2021 ON THE FILES OF THE FAMILY COURT, PALA** **EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN I.A. NO. 2/2021 IN O.P. NO. 651/2021** **EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 25-42022 IN I.A. NO. 2/2021 IN O.P. NO. 651/2021 ON THE FILES OF THE FAMILY COURT, PALA** ## **RESPONDENT EXHIBITS** **EXHIBIT R1(A) TRUE COPIES OF THE PHOTOGRAPHS SHOW SOME OF THE HAPPY MOMENETS OF THE CHILDREN WITH THE PETITIONER** 21 O.P.(FC) Nos.345, 347 & 348 of 2022 ## **APPENDIX OF OP (FC) 348/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 A TRUE COPY OF THE O.P. NO. 480/2019 ON THE FILES OF THE FAMILY COURT, PALA** - **EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 20-122021 IN I.A. NO. 8/2021 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA** **EXHIBIT P3** - **A TRUE COPY OF THE JUDGMENT DATED 163-2022 IN O.P.(FC). NO. 66/2022 ON THE FILES OF THIS HONOURABLE COURT** - **EXHIBIT P4** - **A TRUE COPY OF THE I.A. NO. 3/2022 IN O.P. NO. 480/2019 ON THE FILES OF THE FAMILY COURT, PALA** **EXHIBIT P5** - **A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO. 3/2022 IN O.P. NO. 480/2019 ON THE FILES OF THE FAMILY COURT, PALA** - **EXHIBIT P6** **A TRUE COPY OF THE ORDER DATED 25-42022 IN I.A. NO. 3/2022 IN O.P. NO. 480/2019 ON THE FILES OF THE FAMILY COURT, PALA** - **RESPONDENT EXHIBITS** - **EXHIBIT R1(A)** **TRUE COPIES OF THE PHOTOGRAPHS SHOW SOME OF THE HAPPY MOMENETS OF THE CHILDREN WITH THE PETITIONER**