Nisha T.S. vs Jayanandan K.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** **Mat.Appeal.No.347 OF 2015** **AGAINST THE JUDGMENT DATED 31-01-2015 IN OP 524/2013 OF FAMILY COURT, MUVATTUPUZHA** ## **APPELLANT :** **NISHA T.S., AGED 31 YEARS, D/O. SIKUMARAN, THENOORAN HOUSE, EAST OKKAL KARA, OKKAL VILLAGE, KUNNATHUNADU TALUK** **BY ADVS. SMT.GISA SUSAN THOMAS SMT.RACHEL SARA JAMES SMT.NEENU.P.KUMAR SMT.K.S.SHALEEJA** ## **RESPONDENT :** **JAYANANDAN K.A., AGED 43 YEARS, S/O. AYYAPPAN, KUTTYALAKKAL HOUSE, KURICHCHILAKKODE KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, KOCHI - 683 544** ## **BY ADV. SRI.M.A.BIJOY KUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2019, ALONG WITH CO.62/2015, THE COURT ON 06-08-2019 DELIVERED THE FOLLOWING :** **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** **CO.No.62 OF 2015 IN Mat.Appeal. 347/2015 AGAINST THE ORDER IN Mat.Appeal 347/2015 OF HIGH COURT OF KERALA** ## **APPLICANT/ RESPONDENT :** **JAYANADAN.K.A., AGED 43 YEARS, S/O.AYYAPPAN, KUTTIYALAKKAL HOUSE, KURICHILAKKODE KARA, KODANADU VILLAGE, KUNNATHUNADU TALUK, KODANADU P.O.** **BY ADV. SRI.M.A.BIJOY KUMAR** **RESPONDENT/ APPELLANT :** **NISHA.T.S., AGED 31 YEARS, D/O.SUKUMARAN, THENOORAN HOUSE, EAST OKKAL KARA, OKKAL VILLAGE, KUNNATHUNADU TALUK, OKKAL P.O.** **BY ADV. SMT.GISA SUSAN THOMAS** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2019, ALONG WITH Mat.Appeal.347/2015, THE COURT ON 06-08-2019 DELIVERED THE FOLLOWING :** **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 3 ## JUDGMENT ## Annie John, J. The appellant is the respondent in O.P. No. 524 of 2013 on the files of the Family Court, Muvattupuzha. The respondent/husband has filed the aforesaid Original Petition seeking interim custody of the minor child. 2. The case of the appellant is as follows: The marriage between the appellant and the respondent was solemnized on 09.01.2005 as per the Hindu religious rites. A child was born out of that wedlock on 16.12.2006. After the marriage, they lived in the house of the respondent at Kodanadu along with his mother, elder brother, his wife and children. Due to the continuous physical and mental cruelty of the respondent and also the sexual perversion of the respondent, the appellant was compelled to ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** **==> picture [6 x 8] intentionally omitted <==** leave the company of the respondent. Thereafter, the appellant and the respondent were residing along with her parents and the respondent did not give any maintenance to the appellant and the child. Accordingly, the appellant was constrained to file M.C. No. 290 of 2010 before the Family Court, Ernakulam on 22.10.2010. Thereafter, when the case was transferred to the Family Court, Muvattupuzha, they have entered into a compromise and the respondent was agreed to pay Rs.1500/- per month as maintenance of child and Rs.500/- towards batta for producing the child in the premises of the Family Court on every first and last Sundays of every month. The respondent had an opportunity to mingle with the child from 10 a.m. to 5 p.m on those days. According to the appellant, even if the custody of the child from 10 a.m. to 5 p.m. was provided by the appellant, the respondent fails to give maintenance to the child. ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** **==> picture [6 x 9] intentionally omitted <==** 3. The court below as per judgment dated 31.01.2015, ordered interim custody of the child with the respondent on every second Saturdays from 4 p.m. till Sunday 4 p.m., and for three days each during Onam and the Christmas Holidays starting from the first day of the holidays , and for 10 days during Summer Vacation starting from the first day of the Summer Vacation. 4. The learned counsel for the appellant argued that the interest of the child was not kept in mind while passing the impugned order. 5. Admittedly the petitioner/ appellant and respondent were spouses. The marriage was solemnized on 09.01.2005 as per Hindu religious rites. The minor child Niranjan was born in that wedlock on 16.10.2006. They were living together with the child in the house of the petitioner. Then matrimonial discord emerged and they started to live 6 ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** separately. The appellant and the respondent filed various petitions and pending this petition the marriage between them was dissolved as per decree dated 05.10.2013 passed in OP.No.515/2012. The appellant had filed MC.No.70/2012 and it was settled between the parties and agreed to pay Rs.1,500/- per month as maintenance of the child and Rs.500/- as batta for producing the child in the premises of the Family Court on every second Saturdays. It was agreed between the parties that the respondent could mingle with the child from 10.00 a.m. to 12.00 noon. 6. Here also, the respondent has claimed only the interim custody of the child during weekend holidays, Onam and Christmas holidays and also during summer vacation and also there was a prayer to allow the respondent to take the child from school and return the child there on the school reopening day. There was no prayer for the effective **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 7 custody of the minor child severing him from his mother with whom he is living since his birth. 7. The appellant had seriously contested with the respondent by stating that the respondent has already got remarried and the child is not ready to go with him. Over and above, the respondent has not paid the maintenance amount without fail as agreed and if the respondent is allowed to visit the child in school, the child would become a laughingstock to other children. 8. The lower court has allowed the petition by directing the appellant to hand over the custody of the minor child Niranjan K.Jayanand to the respondent at her house on every second Saturdays at 4.00 p.m. and the respondent to bring back the child at the same place at 4.00 p.m. on the next day, that is, on Sunday and also directed that the respondent is entitled to get custody of the child for three **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 8 days each during Onam holidays and the Christmas holidays starting from the first day of the holidays. The respondent is also entitled to get the custody of the child for 10 days during summer vacation starting from the first day of the summer vacation and the respondent is also allowed to visit the child in school without causing any disturbance to the education of the child, with previous permission and as allowed by the Principal of the School. Highly aggrieved by the finding entered by the Family Court, the appellant has preferred this appeal. 9. The respondent/husband has filed a Cross Objection stating that the court below has passed an order without appreciating his evidence. The court below summoned the child before court and allowed the Original Petition in part. The court below, after getting opinion from the child and considering the facts and circumstances of the ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 9 case and the paramount welfare and interest of the child, ought to have allowed O.P. No. 524 of 2013. At the time of marriage, the appellant was suffering from a skin disease. After the marriage, the appellant and the respondent have jointly gone to Dr. John Syamkutty, Salvation Army E.B Hospital, P.O. Varikkoly for treatment. After taking medicines, the appellant's disease became cured and the respondent's disease spread over the body. At the time of marriage, the respondent have disease only on the upper lip. Before the marriage, the respondent reveals about the skin disease to the appellant; but, she was ready to marry the respondent without any compulsion. In the re-marriage of the respondent, a girl child was born and the child in dispute is the only male member in the young generation of the respondent's family. The petitioner in the Cross Objection is the respondent in the Mat. Appeal and the petitioner in OP ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 10 No. 524 of 2013. The said OP was filed for getting custody of the child; but the court has partly allowed the petition. The cross objection has been filed by the respondent so as to counter the Mat. Appeal filed by the appellant/respondent. So, the applicant-the respondent in the Mat. Appeal- prays for setting aside the order of the court below regarding issue No.1 and to dismiss the appeal and the interlocutory applications filed by the appellant/respondent. 10. According to Adv. Gisa Susan Thomas, the counsel for the appellant, the lower court went wrong in finding that an interim petition can be maintained only in a petition for permanent custody. The paramount welfare of the child was not considered by the court below. Further she has argued that earlier there was a finding related to the guardianship. So the subsequent application is hit by the principles of resjudicata. She has also quoted a ruling held in ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 11 Joshi v. Madhav Unde [1998 (1) SCC 112] wherein the Supreme Court held that “where there is finality of order regarding custody of child the subsequent proceedings for the same relief acts as resjudicata, even though orders relating to custody of child are interlocutory in nature and subject to modification”. 11. The appellant is the wife of the respondent and the respondent herein has claimed the interim custody of the child only during the weekend holidays, Onam and Christmas holidays and also during summer vacation. He has also prayed to allow him to visit the child at school and there is no prayer for getting permanent custody of the child from the appellant. But the appellant's contention is that the respondent has already got married. So, the child is frightened to accompany the respondent. Another contention raised by the appellant is that the respondent has **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 12 not even paid the maintenance to the child as agreed and also contended that if the respondent is allowed to visit the child in school, the child would become a laughingstock to other children. 12. While evidence, PW1 had produced Ext.A1 series document in order to establish that he has paid the school fees for the minor son. Ext.A1 is the fee card for the educational year 2013-14. Ext.A1(a) is the receipt showing payment of cost of books and payment of tuition fee, Ext.A1(b) fee card for the year 2014-15 and Ext.A1(c) receipt showing that he is meeting the school fee and other educational expenses of the child. According to RW1, she has remitted the school fee for the year 2013-14. But no evidence is produced to support her claim. 13. The appellant has raised several allegations against the respondent, who is none other than the father of ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 13 the minor child. According to the appellant, the respondent is having criminal backgrounds. Therefore, he is not fit enough to safeguard the welfare of the child. But, instead of making such allegations, she could not able to substantiate this fact either in her counter or in the chief affidavit. The appellant could not able to produce any scrap of paper to prove that the respondent is having any criminal background. 14. The learned counsel for the appellant has strenuously argued to convince the court that the respondent has failed to pay the maintenance as agreed. During evidence, Adv. M.A.Bijoy Kumar, the learned counsel for the respondent/husband has submitted that the respondent is paying maintenance to the child regularly and the appellant has violated the order of the court by denying the visitation right as well as custody right. The respondent had produced Exts.A14 and A15 receipts to show that he was paying ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 14 maintenance, as agreed. During cross examination, the appellant has admitted that she had produced the child for visitation of the respondent and the child was mingling with the respondent till October 2013 and maintenance was also paid till then. Even, according to the appellant, the respondent has defaulted in payment of arrears of maintenance. But she has not taken any steps to realise the amount from the respondent. In fact, the duty on the part of the court regarding the minor is concerned, the welfare of the child is important. The prime and paramount consideration of the custody of the child is concerned, is the child's welfare and it is not the statutory duty of the parents to claim custody of the child. As per Article 21 of the Constitution of India, the child is having also the right to have pleasant life along with the parents or any right person, who takes care of him. ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 15 15. In this case, the appellant and the respondent, who are the parents of the minor child is in a strange relationship and they are fighting each other by making claim over the child. The appellant is not ready to hand over the child to the respondent who is the father of the minor child. But father seeks interim custody of the child to share his love and affection to the child. In fact the child requires love, affection and care of his parents. But here, he is not getting parental care due to the fight between the appellant and the respondent. 16. The main allegation by the appellant is that the respondent got married. So he is not capable of looking after the child and this fact is declined by the respondent in his counter. On the other hand, the respondent seeks to get interim custody of the child for a short period and also for visitation right. No harm will be caused if the child is given in 16 ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** the custody of the respondent for a short period. The respondent has no case that the appellant is not promoting the welfare of the child. He is not claiming indefeasible right to get custody under Section 25 of the Act. The two grounds envisaged by the appellant is that he is not paying the maintenance and he remarried again. But the respondent counsel has submitted that the respondent is paying maintenance regularly and that he remarried is incorrect. The respondent is not having a case that the appellant mother is not having sufficient income and that the welfare of the child affected and the respondent also has no case that the welfare of the child would be better protected if the custody of the child is given to him. 17. While the appellant was examined as RW1, she has admitted that the respondent used to get custody of the child from 10.00 a.m. to 12.00 noon on every second ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 17 Saturdays and the child is very familiar with the respondent. The court below had interacted with the child and had recorded in the judgment that the child had not shown any sort of fear towards his father and the child had stated that his father used to purchase toffees for him. 18. The courts power under Section 25 of the Guardian and Wards Act is also, to be governed primarily by the consideration of the welfare of the minor child. The discretion vested in the court is, as in the case with all judicial discretion to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents even if the facts of the cases are similar. 19. The dominant consideration in making orders under Section 25 of the Act is the welfare of the minor. Here the father seeks custody of the child. It is true that the prime ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 18 fact to be considered is the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. 20. The allegation that the respondent got married another lady is not sufficient enough to disrupt the healthy relationship and bondage of love with him. Accordingly, the court below had come to a conclusion that the respondent is also capable of getting visitation right as well as the custody of the child during summer, Christmas and Onam vacation and also held that the respondent is a responsible person to receive the custody of the child. The main prayer in the OP is to get interim custody of the minor child during weekend holidays, Onam and Christmas holidays and also during summer vacation. He also sought for a direction to allow him to take the child from the school and to return the child there on the school re-opening day, and also to visit the child ## **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 19 at school. After evaluating the evidence, the Family Court has directed the appellant/respondent to hand over the custody of the minor child, Niranjan K Jayanand, to the respondent/petitioner at her house on every second Saturdays at 4 p.m and the respondent to bring back the child at the same place at 4 p.m. on the next day, that is on Sunday. It is also ordered that the appellant/respondent is entitled to get custody of the child for three days each during Onam and Christmas holidays starting from the first day of the holidays and also for ten days during summer vacation starting from the first day of vacation. The respondent/petitioner was also allowed to visit the child in school without causing any disturbance to the education of the child with the previous permission of the Principal of the school. After hearing and evaluating the evidence, we find that the approach of the Family Court is correct. We are **Mat.Appeal.No.347 OF 2015 & CO.No.62 OF 2015 IN Mat.Appeal. 347/2015** 20 unable to find any illegality, perversity in the order to warrant our interference. Hence the appeal and the Cross Objection are liable to be dismissed. In the result, this Mat.Appeal and Cross Objection are dismissed. Sd/- K.HARILAL, JUDGE Sd/ANNIE JOHN, JUDGE RKM