Minu M v. Arun K. Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944 OP (FC) NO.587 OF 2022** **AGAINST THE ORDER IN I.A.NO.2 OF 2022 IN OP (HM) NO.206 OF 2022 BY THE FAMILY COURT, THODUPUZHA** ## **PETITIONER/RESPONDENT/PETITIONER:** **MINU M AGED 36 YEARS D/O.K.R.MANMADHAN NAIR, KARUNATTU (H), THODUPUZHA EAST P.O., KANJIRAMATTOM KARA, IDUKKI - PIN - 685585** **BY ADV. MAITHEEN M.PAREETH** ## **RESPONDENT/PETITIONER/RESPONDENT:** **ARUN K.NAIR S/O.M.C.KARUNAKARAN NAIR, AGED 41 YEARS, MANGATTU (H), MEMURYKARA, PAMPAKKUDA P.O., ERNAKULAM DISTRICT, PIN - 686667** **BY ADVS. Sandeep M.B K.P.SREEJA(K/788/2015) AMAL STANLY(K/437/2019)** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 05.01.2023, THE COURT ON 19.01.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.587 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The petitioner in O.P (HM) No.206 of 2022 on the file of the Family Court, Thodupuzha has filed this original petition under Article 227 of the Constitution of India. She seeks to set aside Ext.P7, which is the order of the Family Court in I.A No.2 of 2022 in O.P.(HM) No.206 of 2022. As per the said order, the petitioner was directed to afford right of visitation to the children, Nandana.A.Nair aged 8 years and Keerthana.A.Nair aged 3 ½ years to the respondent from 10.00 a.m on a Saturday chosen by the parties in every month. 2. On 14.10.2022, notice on admission was ordered to be served on the respondents. Operation of Ext.P7 order was stayed for a period of one month. 3. The respondent entered appearance through his learned Counsel. On 23.12.22, both parties were directed to be present before the Court along with the children on 05.01.2023. In terms of the said order, both parties were 3 O.P.(FC) No.587 of 2022 present personally along with the children before this Court on 05.01.2023. We have interacted with children and also the parents. Considering the responses of the children and the parents and also the submissions of the learned Counsel on either side, we have directed the parties and the children to appear before the Family Counselling Centre attached to the Kerala High Court Legal Services Committee. After counselling they reported back at 4.00 p.m and we interacted with them again. We have perused the report and also the additional report placed before us in sealed covers by the counsellor. 4. Heard the learned Counsel appearing for the petitioner and also the learned Counsel appearing for the respondent. 5. From the averments of the parties and their responses during the interaction, we find that there exists disharmony in their marital relationship. A petition for dissolution of marriage is pending consideration of the Family Court, Thodupuzha. Similarly, a petition filed by the petitioner herein under the provisions of the Protection of Women from 4 O.P.(FC) No.587 of 2022 Domestic Violence Act, 2005 is pending before the Chief Judicial Magistrate, Thodupuzha. The petitioner would contend that the children are afraid of going to the house of the respondent mainly due to the cruel treatment by the maternal grandmother. There is an allegation that she practices witchcraft and the activities in connection therewith are intolerable to the children. There is further allegation that the respondent always treats the petitioner cruelly. We are not expected to consider the truth or falsity of those allegations in this proceedings. 6. O.P(HM) No.206 of 2022 was filed by the petitioner seeking dissolution of marriage. The respondent filed I.A.No.2 of 2022 on that O.P. invoking the provisions of Section 26 of the Hindu Marriage Act, 1955 for getting interim custody of the children. During interaction, the children did not show much interest or enthusiasm to go along with their father. Of course, the children are now residing with the petitioner and therefore there may be an attempt to overawe the will of the children. At this interim stage, neither we nor the Family court 5 O.P.(FC) No.587 of 2022 is expected to inquire in detail into those aspects, since such matters assume relevance now only to the extent of deciding welfare of the children, and their best interest, if interim custody is ordered. 7. 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 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 6 O.P.(FC) No.587 of 2022 must therefore be very wary of what is said by each of the spouses. 8. 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 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 7 O.P.(FC) No.587 of 2022 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. 9. 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 8 O.P.(FC) No.587 of 2022 passed only for protecting the rights of the parents. xx xx xx The court cannot accept the submission that, while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents. 10. In the light of the law laid down in the aforesaid decisions, the interim custody of the children can be decided bearing in mind their welfare and the best interest alone. When the children are not interested in residing along with the respondent, for which convincing reasons are stated, we are of the view that the Family Court rightly denied overnight custody to the respondent. However, it is necessary to afford an opportunity to the respondent to have interaction with the children which is absolutely necessary for maintaining the emotional connect between the father and the children. In the circumstances of the case children need not be taken to the house of the respondent. Once the relationship becomes conducive and the children feel the company of the father 9 O.P.(FC) No.587 of 2022 comfortable, giving him overnight custody may be thought of. Accordingly, we dispose of this original petition, modifying Ext.P7 order. The respondent shall have the right to interact with the children on every alternate Saturday from the premises of the Family Court, Thodupuzha from 11.00 a.m till 3.00 p.m. The petitioner shall take the child to the Family Court for the said purpose. The Family Court, Thodupuzha may modify the said arrangement if required on account of change of circumstances. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV 10 O.P.(FC) No.587 of 2022 ## **APPENDIX OF OP (FC) 587/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1** **TRUE COPY OF THE 'SPEECH AND LANGUAGE ASSESSMENT REPORT' DATED 01.04.2022 ISSUED BY DECIBEL SPEECH AND HEARING CENTRE PVT LTD, THODUPUZHA** - **Exhibit P2 TRUE COPY OF THE 'OCCUPATIONAL THERAPY ASSESSMENT REPORT' DATED 05.04.2022 ISSUED BY DECIBEL SPEECH AND HEARING CENTRE PVT LTD, THODUPUZHA** - **Exhibit P3 TRUE COPY OF THE ORDER DATED 07.05.2022 PASSED IN CMP. 2188/ 2022 INM.C. NO. 206/ 2022 BY THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA** - **Exhibit P4 TRUE COPY OF THE MEMORANDUM OF ORIGINAL PETITION DATED 07.05.2022 FILED IN O.P(HM) NO. 206/ 2022 BEFORE THE FAMILY COURT, THODUPUZHA** - **Exhibit P5 TRUE COPY OF THE PETITION DATED 01.07.2022 FILED INI.A. 2 OF 2022 IN O.P(HM) NO. 206/ 2022 BEFORE THE FAMILY COURT, THODUPUZHA** - **Exhibit P6 TRUE COPY OF THE LETTER DATED 18.07.2022 ISSUED BY DECIBEL SPEECH AND HEARING CENTRE PVT LTD, THODUPUZHA** - **Exhibit P7 TRUE COPY OF THE ORDER DATED 20.08.2022 PASSED IN I.A.NO. 2/ 2022 IN O.P(HM) NO. 206/ 2022 BY THE FAMILY COURT, THODUPUZHA** - **RESPONDENT'S EXHIBITS** - **Exhibit R1 True copy of the Ph.D. Offline/Hybrid** 11 ## O.P.(FC) No.587 of 2022 **public Viva-Voce Examination notification dated 02.09.2022** ## **Exhibit R2** **True copy of the bill dated 15.09.2022 issued by Pothys Pvt. Limited, Coimbatore** **Exhibit R3 Original photographs of the Respondent and children** **Exhibit R4** **True copy of I.A 3/2022 on O.P 206/2022 on the files of Thodupuzha Family Court dated 20.10.2022**