Naveen Mathew Elias v. Harsha Kurian

# **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 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 O.P.(FC) NO. 126 OF 2023** **AGAINST THE ORDER DATED 20.12.2022 IN I.A.NO.9 OF 2022 IN O.P.NO.1417 OF 2021 ON THE FILE OF THE FAMILY COURT, KOTTAYAM** ## **PETITIONER:** **NAVEEN MATHEW ELIAS,** **AGED 35 YEARS,SON OF LATE C.M. ELIAS, CHERKOTTU HOUSE, PAMPADY SOUTH P.O., PAMPADY VILLAGE, KOTTAYAM DISTRICT, PIN – 686521.** **BY ADVS.** **ABRAHAM GEORGE JACOB C.MURALIKRISHNAN (PAYYANUR) THASNIEEM BADARUDEEN** ## **RESPONDENT:** **HARSHA KURIAN,** **AGED 34 YEARS, DAUGHTER OF KURIAN VARGHESE, KOCHUPARAMBIL, THAKADIYIL HOUSE, KOOROPPADA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686502.** **BY ADVS. C.S.MANILAL S.NIDHEESH** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 29.03.2023, THE COURT ON 04.04.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.126 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner in O.P.No.1417 of 2021 on the file of the Family Court, Kottayam at Ettumanoor has filed this Original Petition under Article 227 of the Constitution of India. He challenges Ext.P8 order dated 20.12.2022 of the Family Court by which I.A.No.9 of 2022 filed by the petitioner seeking interim custody of the child during vacation periods was dismissed. 2. On 15.03.2023, notice was directed to be served on the respondent by Special Messenger. The respondent entered appearance through her learned counsel on receipt of the notice. On 22.03.2023, after hearing the learned counsel on both sides, we have directed the parties to be present in person in Court along with the minor child on 29.03.2023. 3. In terms of the said order, both parties appeared before us along with the child at 10.15 a.m. on 29.03.2023. We have interacted with them. It appeared to be appropriate to refer them for counselling. Therefore, both parties were 3 O.P.(FC) No.126 of 2023 directed to appear before the Family Counselling Centre under the Kerala High Court Legal Services Committee along with the child at 10.45 a.m. on the same day. After counselling, they appeared before us at 3.30 p.m. We have interacted with them again. We have perused the report of the Counsellor, which was made available for our perusal in a sealed cover. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. Marriage between the petitioner and the respondent was solemnised on 03.04.2016. The child Daveed @ Mathew was born to them on 20.05.2017. Following marital discord, they started living separately. The petitioner is residing now at his parental house at Kottayam and the respondent is residing at Ernakulam. The child is with the respondent-mother. The petitioner filed O.P.No.1417 of 2021 before the Family Court, Kottayam at Ettumanoor, seeking permanent custody of the child. He filed I.A.No.1 of 2021, 4 O.P.(FC) No.126 of 2023 Ext.P2, seeking interim custody of the child. The respondent filed a detailed counter affidavit, Ext.P3. 6. After hearing both sides, the Family Court made arrangement regarding interim custody of the child, which was as follows:- - “1. The custody of the minor child will continue with the respondent till final decision in the O.P. 2. The petitioner is entitled to have the custody of the minor child from 10 a.m. on Saturday and till 4 p.m. on the following Sunday. 3. The petitioner shall take the child from the residence of the respondent at Ernakulam and hand over the child in the residence of the respondent.” 7. The respondent challenged the said order before this Court by filing O.P.(FC) No.223 of 2022. This Court after hearing the parties modified the said order as per the judgment dated 16.06.2022 as follows:- “Taking note of the convenience and inconvenience of both parties, we are of the view that the impugned order can be modified, allowing the respondent/father to have custody at 05.00 p.m., on Friday preceding to second Saturday of every month. The father can keep the custody till the following Sunday at 05.00 p.m. The child shall be handed over and returned from the 5 O.P.(FC) No.126 of 2023 residence of the mother at Panampally Nagar. If the petitioner/mother changes her residence to Kottayam, that shall be intimated to the respondent/father and handing over of the child can be at the residence of the mother at Kottayam.” 8. The said directions are in force now. The petitioner has been interacting with the child in terms of the said order. When we interacted with the child, he stated that his stay with the father was comfortable. He desires to be in the company of the petitioner-father as well. Of course, the respondent expresses concern in sending the child along with the petitioner more often. However, in terms of Ext.P5 order, the child used to be with the petitioner and there has not been any complaint regarding such custody. On the other hand, it appears, the child enjoys his company with the petitioner, which means that an emotional bondage has been developed between the petitioner and the child. Such a relationship is absolutely essential for the proper upbringing of the child as well. ## 9. 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.126 of 2023 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. 10. 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.126 of 2023 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.126 of 2023 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. 11. 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. 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. 9 O.P.(FC) No.126 of 2023 12. In the light of the law laid down in the aforesaid decisions, while ordering custody of a child, the court is obliged to ensure its welfare. Since the child is comfortable in the custody of the petitioner-father, we are of the view that the request of the petitioner is reasonable. Accordingly, we allow the request of the petitioner in Ext.P6 application to a limited extent. Therefore, Ext.P8 order requires interference. 13. Accordingly, this Original Petition is disposed of and Ext.P8 order is modified as follows:- Apart from the interim custody allowed as per Ext.P5, the petitioner is entitled to custody of the child for the first four days each during Onam and Christmas vacations and two weeks starting from the second Monday in April, during the summer vacation. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.126 of 2023 ## **APPENDIX OF OP (FC) 126/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN OP 1417 OF 2021 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR INTERIM CUSTODY IA 1 OF 2021 IN OP 1417 OF 2021 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR** **EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 20/12/2021 TO IA 1 OF 2021 IN OP 1417 OF 2021 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10/03/2022 IN IA NO. 1 OF 2021 IN OP NO. 1417 OF 2021 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP(FC) 223 OF 2022 DATED 16/06/2022** - **EXHIBIT P6 TRUE COPY OF IA NO. 9 OF 2022 IN OP 1417 OF 2021 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 12/12/2022 FILED BY THE RESPONDENT TO IA NO. 9 OF 2022 IN OP 1417 OF 2021 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 20/12/2022 IN IA NO. 9 OF 2022 IN OP 1417 OF 2021 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR** 11 ## O.P.(FC) No.126 of 2023 **EXHIBIT P9 TRUE COPY OF I.A. NO. 7 OF 2022 IN OP NO. 1417 OF 2021 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR DATED 30/07/2022 EXHIBIT P10 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 27/08/2022 FILED BY THE RESPONDENT IN IA 7 OF 2022**