Neethu Anna John & Suni Philip v. Wilson Sebastian P.

## **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 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 OP (FC) NO. 697 OF 2022** **AGAINST THE ORDER/JUDGMENT DTD 12.9.2022 IN I.A.NO.1/2022 IN OP 576/2022 OF FAMILY COURT, PALA** ## **PETITIONERS/RESPONDENTS IN IA/RESPONDENTS IN OP:** 1 NEETHU ANNA JOHN, AGED 28 YEARS CHERUVIL HOUSE, PARATHODU PO, EDAKKUNAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN - 686512 2 SUNI PHILIP, AGED 54 YEARS KODUTHALIPARAMBIL HOUSE, CHITTADI PO, MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN - 686512 BY ADV JOSY ANTONY ## **RESPONDENT/PETITIONER IN IA/PETITIONER IN OP:** WILSON SEBASTIAN P., AGED 37 YEARS PARACKAL HOUSE, MUNDAKKAYAM PO, MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK,KOTTAYAM DISTRICT TALUK, KOTTAYAM DISTRICT, PIN - 686513 BY ADV A.K.HARIDAS . THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(FC) 697 of 2022 2 ## **J U D G M E N T** Anil K.Narendran, J. The petitioners are the respondents in O.P.No.576 of 2022 on the files of Family Court, Pala, which is the one filed by the respondent herein–father for custody of the minor child by name, Steev Wilson. In that original petition, the father filed I.A.No.1 of 2022 seeking interim custody of the minor child. In that interlocutory application, the Family Court passed Ext.P9 order dated 12.09.2022, whereby the father is allowed to have interim custody of the minor child, who is aged 5 years, on every 2[nd] Saturday of the month, from 10 a.m. to next day (Sunday) up to 3 p.m. Paragraph No.5 of Ext.P9 order reads thus: “5. The petitioner is allowed to have an interim custody of minor child, Steev Wilson, aged 5 years, on every 2[nd] Saturday of the month from 10 a.m. to next day (Sunday) up to 3 p.m. For that the petitioner can carry the child from the premises of the respondents. For that the respondents should co-operate with the petitioner, on completion of OP(FC) 697 of 2022 3 interim custody the minor should be reproduced at the premises of the respondents by the petitioner. If possible the parties can choose convenient date and place for the effect by the mutual consensus. No costs ordered.” Feeling aggrieved, the petitioners, i.e., the mother and maternal grandmother of the child are before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 2. On 16.12.2022, when this original petition came up for admission, this Court issued notice on admission to the respondent. The learned counsel for the petitioners was permitted to take out notice to the respondent through his counsel before the Family Court, Pala, where O.P.No.576 of 2022 is pending consideration. 3. Heard the learned counsel for the petitioners and also the learned counsel for the respondent. 4. The fact that Ext.P9 order is an _ex parte_ order is not in 4 OP(FC) 697 of 2022 dispute. 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 5 OP(FC) 697 of 2022 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 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 6 OP(FC) 697 of 2022 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. 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 OP(FC) 697 of 2022 7 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 parents. 8. In **Rohith Thammana Gowda v. State of Karnataka & others [(2022) SCC Online SC 937],** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an enquiry regarding custody of children. The Apex Court after referring to the law laid down in **Nithya Anand Raghawan v. State (NCT of Delhi) & another** **[(2017) 8 SCC 454]** explained the parameters to be reckoned with while deciding the question of interim custody in a case where there occurs change in the place of residence of children. 9. As already noticed hereinbefore, Ext.P9 order is an _ex parte_ order, and therefore, the Family Court had no occasion to interact with the child, before ordering overnight custody of the 8 OP(FC) 697 of 2022 minor child to the respondent–father. In such circumstances, this Original Petition is allowed by setting aside Ext.P9 order dated 12.09.2022 of the Family Court, Pala, in I.A.No.1 of 2022 in O.P.No.576 of 2022 and by directing the said court to reconsider that interlocutory application, after affording the petitioners an opportunity to file their objections, and taking note of the law laid down by the Hon'ble Apex Court in the decisions referred to supra. A decision in this regard shall be taken by the Family Court, as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- ## **P.G.AJITHKUMAR** **JUDGE** jg OP(FC) 697 of 2022 9 ## **APPENDIX OF OP (FC) 697/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE PETITION BEARING M.C. NO. 34/2018 DATED 4/6/2018 THUS FILED BY THE PETITIONER BEFORE THE FAMILY COURT, PALA - Exhibit P2 A TRUE COPY OF THE DIVORCE PETITION BEARING OP(DIV) NO. 676/2019 DATED 27/8/2019 THUS FILED BY THE 1ST PETITIONER BEFORE THE HON'BLE FAMILY COURT, PALA - Exhibit P3 A TRUE COPY OF THE PETITION BEARING O.P. NO. 316/2020 THUS FILED BY THE PETITIONER BEFORE THE FAMILY COURT, PALA - Exhibit P4 A TRUE COPY OF THE DECREE DATED 18/3/2021 ALONG WITH THE SETTLEMENT AGREEMENT - Exhibit P5 A TRUE COPY OF THE JOINT PETITION FOR DIVORCE BEARING OP (DIV) NO. 192/2021 DATED 30/3/2021 BEFORE THE FAMILY COURT, PALA - Exhibit P6 A TRUE COPY OF THE JUDGMENT AND DECREE DATED 1/10/2021 IN OP NO. 192/2021 ON THE FILES OF THE FAMILY COURT, PALA - Exhibit P7 A TRUE COPY OF THE PETITION BEARING OP(G&W) NO. 576/2022 THUS FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, PALA - Exhibit P8 A TRUE COPY OF THE I.A. NO. 01/2022 IN OP(G&W) NO. 576/2022 ON THE FILES OF THE FAMILY COURT, PALA OP(FC) 697 of 2022 10 Exhibit P9 A TRUE COPY OF THE ORDER DATED 12/9/2022 IN I.A. NO. 1/2022 IN O.P. NO. 576/2022 ON THE FILES OF THE FAMILY COURT, PALA Exhibit P10 A TRUE COPY OF THE REVIEW PETITION BEARING I.A. NO. 3/2022 IN OP NO. 576/2022 ON THE FILES OF THE FAMILY COURT, PALA Exhibit P11 A TRUE COPY OF THE OBJECTION DATED 11/10/2022 FILED BY THE RESPONDENT IN I.A. NO. 3/2022 IN OP NO.576/2022