Mithula V C v. Ajay Mohan

# **`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 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944 ``` ``` OP (FC) NO.504 OF 2022 ``` ``` AGAINST THE ORDER DATED 11.08.2022 IN I.A.NO.8 OF 2022 IN O.P.NO.1231 OF 2021 ON THE FILE OF THE FAMILY COURT, THRISSUR ``` ## **`PETITIONER:`** ``` MITHULA V C, AGED 26 YEARS VAANDIPARAMBIL HOUSE, MULLOORKARA P.O, MULLUOOR- KARA VILLAGE, THALAPILLI TALUK, THRISSUR, PIN - 680583 ``` ``` BY ADVS. JOSEPH GEORGE P.A.REJIMON P.K.HASSANKUTTY ``` ## **`RESPONDENT:`** ``` AJAY MOHAN AGED 31 YEARS PUTHENPARAMBIL HOUSE, KURICHI, CHANGANASERRY, KOTTAYAM, NOW RESIDING AT 3RD FLOOR, MALIYEKKAL TOWER, PALLISERRY, THAMMANAM P.O, ERNAKULAM DISTRICT, PIN - 682032 ``` ``` BY ADVS. V.PREMCHAND SURYA MOHAN P.(K/001967/2019) FATHIMA SHALU S.(K/2636/2021) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(FC)No.504 of 2022 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent in O.P.No.1231 of 2021 on the file of the Family Court, Thrissur, which is one filed by the respondent herein-husband, seeking an order to appoint him as the guardian of the minor child, namely, Mikavu, who was born in the wedlock on 01.01.2021. In that original petition, the respondent filed I.A.No.2 of 2021, an application for interim custody, in which the Family Court passed Ext.P2 order dated 01.12.2021. Paragraph 6 of that order reads thus; “6. From the pleadings advanced by both parties it can be seen that the respondent has filed several litigations against the petitioner and moreover initiated criminal cases against him. The minor involved herein is an infant who is below the age of one year. Both parties appeared before me with the minor. Since petitioner never had any opportunity to interact with the child, he seems to be a total stranger to the minor. The respondent was not even willing to handover the child to the petitioner though it was suggested by the Court. The said conduct of the respondent does not appear to be an appreciable one and the same is sure to spoil the chances for building a healthy parent child bonding. At the infant stage it is necessary for the welfare of the child to have frequent interaction with his father also, even though the parents are separated. Therefore, I am inclined to allow the petitioner to O.P.(FC)No.504 of 2022 3 visit the child on every 2[nd] Sunday at the office of this Court at 11.a.m. The respondent shall produce the minor at the scheduled time and allow the petitioner to have free interaction with him till 12.30 p.m., the respondent shall physically handover the child to the petitioner during the said visitation time so as to allow the petitioner to have free interaction with the child without any sort of interference from the respondent and her family members. The petitioner shall not take the child outside the premises of Court. Petitioner shall pay a sum of Rs.1,000/- to the respondent towards traveling expenses at the time of each visit.” Alleging that the petitioner has not complied with the order dated 01.12.2021, the respondent filed I.A.No.8 of 2022, in which the Family Court passed an order dated 11.08.2022, which is under challenge in this original petition. Paragraph 4 of that order reads thus; “4. After the said order dated 01.12.2021, the respondent has filed I.A.No.5 of 2022 raising several allegations against the petitioner. The said application was dismissed with cost as per order dated 14.06.2022. From the conduct of the respondent it appeared that she was not even willing to handover custody of the minor to the petitioner even after a specific direction from the Court. Considering these circumstances, I am inclined to give a further direction to the respondent to produce the minor on every second Sunday as directed by this Court. In the event of any further non-compliance severe penal actions will be initiated including detention in civil O.P.(FC)No.504 of 2022 4 prison.” 2. On 31.08.2022, when this original petition came up for admission, this Court admitted the matter on file. Urgent notice by speed post was ordered to the respondent. Simultaneously, the petitioner was permitted to serve notice on the respondent through his counsel before the Family Court, Thrissur. The order of this Court dated 31.08.2022 regarding custody of minor child reads thus; “3. Considering the plea urged by the learned counsel for the petitioner, we allow the father to have visiting rights on the first and fourth Fridays, from 3.30 p.m. to 4.30 p.m., at the premises of the Judicial First Class Magistrate Court, Vadakkancherry, Thrissur. 4. In the light of the above, we stay the impugned proceedings.” 3. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 4. Though the learned counsel for the petitioner and also the learned counsel for the respondent raised various legal and factual contentions, we do not propose to consider those contentions in this original petition, since all those issues will have to be decided in O.P.No.1231 of 2021 pending before the Family Court, Thrissur. The directions contained in Ext.P2 order O.P.(FC)No.504 of 2022 5 dated 01.12.2021 in I.A.No.2 of 2021 now stands modified by the order of this Court dated 31.08.2022. 5. 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 must therefore be very wary of what is said by each of the spouses. 6. In **Yashita Sahu** (supra) the Apex Court noticed that a child, especially a child of tender years requires the love, O.P.(FC)No.504 of 2022 6 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 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 O.P.(FC)No.504 of 2022 7 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. 7. 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 protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the O.P.(FC)No.504 of 2022 8 parents” 8. The decision in **Vasudha Sethi** (supra) was not regarding a post-decree scenario. But when interim custody of a child is the question, the same principle applies equally to the post-decree stage also. In view of the principles laid down in **Yashita Sahu** and **Vasudha Sethi** referred to supra, we are of the view that the wish of the child has to be taken into account before ordering interim custody of the child. 9. The learned counsel for the respondent-father would submit that the order of this Court dated 31.08.2022 is not being complied with by the petitioner-mother. On the other hand, the learned counsel for the respondent-mother would submit that non-compliance of the order was on account of health issues of the minor child. 10. The minor child is only aged 1½ years. The original petition, i.e., O.P.No.1231 of 2021, is pending consideration before the Family Court. The interim arrangements in terms of the order of this Court dated 31.08.2022 shall continue for a further period of two months. Thereafter, the Family Court shall consider the question as to whether the said arrangement O.P.(FC)No.504 of 2022 9 requires modification. While taking such a decision, the Family Court has to keep in mind the principles laid down in the decisions referred to supra. With the above directions, this original petition is disposed of, leaving open the legal and factual contentions raised by both sides. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** O.P.(FC)No.504 of 2022 10 ## **`APPENDIX`** ## **`PETITIONER EXHIBITS:`** ``` Exhibit P-1TRUE PHOTOCOPY OF O.P 1231/2021 OF THE FAMILY COURT THRISSUR ``` - **`Exhibit P-2 TRUE PHOTOCOPY OF ORDER DATED 01-12-2021 IN I.A 2/2021 IN O.P 1231/2021 OF THE FAMILY COURT THRISSUR`** - **`Exhibit P-3 TRUE PHOTOCOPY OF THE FIRST INFORMATION REPORT IN CRIME 721/2022 OF THRISSUR WEST POLICE STATION`** - **`Exhibit P-4 TRUE PHOTOCOPY OF THE I.A 8/2022 IN I.A 2/2021 IN O.P 1231/2021 OF THE FAMILY COURT THRISSUR`** - **`Exhibit P-5 TRUE PHOTOCOPY OF ORDER DATED 11-08-2022 IN I.A 8/2022 IN O.P 1231/2021 OF THE FAMILY COURT THRISSUR`** ``` Exhibit P-6TRUE PHOTOCOPY OF MEDICAL CERTIFICATE DATED 16-08-2022 ISSUED BY DR. MURALI M.R OF ST: JAMES HOSPITAL, CHALAKUDY ``` ## **`RESPONDENT’S EXHIBITS:NIL`**