Neena George v. Alwin K. Jacob and others

1 O.P.(FC) No.488 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 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944** **OP (FC) NO. 488 OF 2022** **IN G.O.P No.2336 OF 2022 OF FAMILY COURT,ERNAKULAM** ## **PETITIONER/PETITIONERS AT LOWER COURT:** **NEENA GEORGE AGED 32 YEARS, D/O.GEORGE JOSEPH KATTARATHIL PARAMBIL, CHAMAKKALA P.O, MANJOOR SOUTH KOTTAYAM, PIN - 686603** **BY ADVS. ANEESH K.R SAURAV B.** ## **RESPONDENT/RESPONDENTS AT LOWER COURT:** - **1 ALWIN K JACOB AGED 32 YEARS, S/O.JACOB.C.KOSHY CHELAKKAVIL HOUSE, MS JUNCTION,ROCKWEL ROAD, PALLILAMKARA, KALAMASSERY, HMT JN, ERNAKULAM, PIN - 683503** - **2 JACOB C KOSHY AGE UNKNOWN, S/O.KOSHY, CHELAKKAVIL HOUSE, MS JUNCTION,ROCKWEL ROAD, PALLILAMKARA, KALAMASSERY, HMT JN, ERNAKULAM, PIN - 683503** - **3 BIJI JACOB AGE UNKNOWN, W/O.JACOB C KOSHY, CHELAKKAVIL HOUSE, MS JUNCTION,ROCKWEL ROAD, PALLILAMKARA, KALAMASSERY, HMT JN, ERNAKULAM, PIN - 683503** - ***4 THE CHILD WELFARE COMMITTEE, ERNAKULAM, BORSTAL SCHOOL, ECHAMUKU, KUNNUMPURAM, PADAMUGHAL, VAZHAKKALA, KAKKANAD, KERALA-682037. (*ADDL. R4 IS SUO MOTU IMPLEADED AS PER THE ORDER DATED 25/08/2022 IN OP(FC) NO.488/2022).** 2 ## O.P.(FC) No.488 of 2022 **BY ADVS. Shabu Sreedharan GOVERNMENT PLEADER SIDHARTHAN V.K.(K/281/1987) JINSON OUSEPH(K/835/2016) CHITRA VIJAYAN(K/849/2016) NIMISHA GEORGE(K/711/2021) APARNA M. NAIR(K/001169/2021) ABDUL HAMEED (NALAKATH)(K/153/1993)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 ## O.P.(FC) No.488 of 2022 ## **J U D G M E N T** ## AjithKumar, J. The petitioner in G.O.P.No.2336 of 2022 on the file of the Family Court, Ernakulam has filed this Original Petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. She has filed the G.O.P seeking to appoint her the guardian of her minor child Ishaani Sarah Alwin aged 2 years and to order the respondent-father to return the child to her custody. She also filed I.A.No.4998 of 2022 in the G.O.P seeking interim custody of the child. She now seeks in this Original Petition a direction to the Family Court, Ernakulam to dispose of I.A.No.4998 of 2022 (Ext.P5) within a time fixed by this Court. A further relief of directing the respondent to handover the custody of the child to the petitioner has also been sought. 2. On 25.08.2022, when this matter came up for admission, Child Welfare Committee, Ernakulam was suo motu impleaded as the additional 4[th] respondent. As directed by this Court, the Child Welfare Committee caused production of the child by the father before this Court. Thereupon, the petitioners was allowed to have custody of the child till 29.08.2022. On 29.08.2022, this Court passed the following order. 4 O.P.(FC) No.488 of 2022 “Read our order dated 25.08.2022. Today parties are present before us. We direct the parties to appear before Dr.Anoop Vincent on 04.09.2022 at 11.00 a.m. for expert assistance to resolve their marital disputes. The child is only two years old. We are of the view that the mother shall keep the custody of the child from Monday to Friday till 5.00 p.m. The father can have the custody of the child from Friday at 5.00 p.m. till Sunday 5.00 p.m. Currently, the mother is residing at Kottayam. The child shall be handed over and returned through the Family Court, Ettumanoor. However, on the basis of counselling with Doctor, the father shall return the child to the mother after counselling session is over. Post on 16.09.2022. “ 3. Today, when the mater is taken up for consideration, the petitioner along with the child and the respondent appeared before this Court. We have interacted with the petitioner, respondent and the child. We find that their counselling by Dr.Anoop Vincent in terms of the directions of this Court did not yield any result. We have persuaded the parties to attend counselling session in the Family Counselling Centre functioning in the premises of this Court. But the petitioner did not agreed for that course. 4. The child is aged only two years. We noticed that the child is interacting with both the mother and father. The prayer in the Original Petition is essentially for a speedy disposal of Ext.P5 5 ## O.P.(FC) No.488 of 2022 application. This Court in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India proposes to decide that prayer only. 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, affection, company, and protection of both parents. This is not only the 6 ## O.P.(FC) No.488 of 2022 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 visitation rights. A child has a human right to have the love and affection of both parents and courts must pass orders ensuring 7 ## O.P.(FC) No.488 of 2022 that the child is not totally deprived of the love, affection and company of one of her/his parents. 7. We are of the view that the Family Court, Ernakulam has to consider Ext.P5 application and pass appropriate orders in the light of the principle laid down by the Apex Court in the aforesaid decision. In the circumstances, we dispose of this Original Petition by directing the Family Court, Ernakulam to list Ext.P5 (I.A.No.4998 of 2022 in G.O.P No.2336 of 2022) for consideration on 29.09.2022. Both parties along with the child shall be present before the Family Court, Ernakulam on that day. The Family Court will pass an order regarding interim custody of the child Ishaani Sarah Alwin on the said day or on 30.09.2022. ## **Sd/-** ## **ANIL K.NARENDRAN JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR JUDGE** PV 8 ## O.P.(FC) No.488 of 2022 ## **APPENDIX OF OP (FC) 488/2022** **PETITIONER'S EXHIBITS Exhibit1 BIRTH CERTIFICATE OF THE CHILD BORN 05/08/2020 Exhibit2 PHOTOGRAPH OF THE CHILD Exhibit3 FIR DATED 16/08/2022 IN CRIME NO 805/2022 OF KALAMASSERY POLICE STATION Exhibit4 GOP NO 2336/2022 FILED BEFORE FAMILY COURT ERNAKULAM Exhibit5 IA NO 4998/2022 IN GOP NO 2336/2022 FILED BEFORE FAMILY COURT ERNAKULAM**