OP (FC) NO. 593 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 8[TH] DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944** **OP (FC) NO. 593 OF 2022** **IN THE MATTER OF I.A. NO.1 OF 2021 IN O.P. NO.851 OF 2021 OF** **FAMILY COURT, KANNUR** ## **PETITIONER/RESPODNENT/RESPONDENT:** **SAKKIA.C.H AGED 30 YEARS D/O A. M. AHAMEDKUTTI, 'ORANGE VILLA', CHIRAKKAL AMSOM, KATTAMPALLY DESOM, KANNUR, PIN - 670011 BY ADVS.ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) M.K.SUMOD E.MOHAMMED SHAFI PRAJIT RATNAKARAN VIDYA M.K.** ## **RESPONDENT/PETITIONER/PETITIONER:** **MUHAMMED RAJID. K AGED 36 YEARS S/O RAFEEK.K, IZATH MANZIL, NEAR MINI STADIUM, MANNA VALAPATTANAM P.O, KANNUR - 670011 (VALAPATTANAM POLICE STATION LIMIT )** **BY ADV. MAHESH V. RAMAKRISHNAN** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON** **08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC) NO. 593 OF 2022** 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent in O.P.No.851 of 2021 on the file of the Family Court, Kannur, an original petition filed by the respondent herein-father seeking permanent custody of the minor child by name, Ahammed Ilan C.H., who is presently aged 7 years. In that original petition, the respondent herein filed I.A.No.1 of 2021, an application for interim custody. That application was allowed by the order dated 23.09.2022, whereby interim custody of the minor child was ordered to be given to the respondent herein on all second Saturdays and the second Sunday of every month. As per that order, the custody of minor child shall be given to the father on 5.00 p.m. on Fridays and given back to the mother at 10.00 a.m. on Monday, in the presence of the Chief Ministerial Officer of the Family Court, Kannur. The father is directed to pay monthly maintenance at the rate of Rs.4,000/- to the minor child. Challenging Ext.P6 order dated 23.09.2022 in I.A.No.1 of 2021, to the extent of ordering interim custody of the minor child to the respondent herein-father, the petitioner is before this Court with this Original Petition filed under Article 227 of the Constitution of India. **OP (FC) NO. 593 OF 2022** 3 2. On 21.10.2022, when this original petition came up for admission, this Court issued notice on admission to the respondent. The learned counsel for the petitioner was permitted to take out notice to the respondent, through his counsel before the Family Court, Kannur where O.P.No.851 of 2021 is pending consideration. This Court granted an interim order staying all further proceedings pursuant to I.A.No.1 of 2021 in O.P.No.851 of 2021 before the Family Court, Kannur for a period of two weeks. 3. The respondent has entered appearance and filed a detailed counter affidavit, opposing the relief sought for in this original petition, raising various contentions. The respondent has also filed I.A.No.1 of 2022 to vacate the interim stay granted on 21.10.2022 and I.A.No.2 of 2022 and seeking an order directing the petitioner-mother to surrender the original passport of the minor child before the Family Court, Kannur. 4. Heard the learned counsel for the petitioner-mother and also the learned counsel for the respondent-father. 5. The reasoning of the Family Court in Ext.P6 order, for granting interim custody of the minor to the respondent-father reads thus:- “7. Point: Petitioner is the father of the minor child. Since the **OP (FC) NO. 593 OF 2022** 4 marital tie up between the petitioner and the respondent stood dissolved the minor had lost his opportunity to remain in the joint custody of both parents. While considering the application for interim custody of a minor child the paramount consideration is the welfare of the minor child. If the prayer is disallowed the minor will be loosing with a chance to remain in the custody of his father. For the proper upliftment of the minor child he can be given in the interim custody of his father atleast one weekend of every month. There is merit in the objection raised by the respondent regarding the refusal of the petitioner in providing maintenance. Due to the disharmony in the marital relationship they got a divorce and remarried. So at present the minor child is deprived to have the custody to remain with his father. During the interactions the minor child showed reluctance to remain in the custody of the petitioner. Since the minor is in the ultimate control of the respondent her influence on the minor child might be reasons for the reluctance of the minor to remain in the custody of the petitioner. But such a circumstance alone cannot be taken as a ground to disallow the interim custody of the minor child to the petitioner.” 6. 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 **OP (FC) NO. 593 OF 2022** 5 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. 7. In **Yashita Sahu [(2020) 3 SCC 67]** 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 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 **OP (FC) NO. 593 OF 2022** 6 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 that the child is not totally deprived of the love, affection and company of one of her/his parents. 8. 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 **OP (FC) NO. 593 OF 2022** 7 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 parents. 9. The decision in **Vasudha Sethi [AIR 2022 SC 476]** 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 [AIR 2022 SC 476]** and **Vasudha Sethi** , we are of the view that the wish of the child has to be taken into account before ordering interim custody of the child. 10. In **Rohith Thammana Gowda v. State of Karnataka and 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) and another [(2017) 8 SCC 454]** explained the parameters to be reckoned with while **OP (FC) NO. 593 OF 2022** 8 deciding the question of interim custody in a case where there occurs change in the place of residence of children. 11. Though the learned counsel on both sides have raised various contentions, we do not propose to consider those contentions in this original petition, since Ext.P6 order, which is under challenge in this original petition is an order passed in I.A.No.1 of 2021 in O.P.No.851 of 2021, whereby the respondent herein-father is granted interim custody of the minor child. 12. The minor child is aged 7 years. The fact that, for quite long, the minor child was not having any contacts with his father is not in dispute. Therefore, before the Family Court ordering overnight custody of the minor child to the father, the child should have been given an opportunity to interact with him in court premises by ordering visitation right. Thereafter, the Family Court shall interact with the minor child and consider the question of his overnight custody to the father, taking note of the law laid down by the Apex Court in the decisions referred to supra. In the above circumstances, this original petition is allowed by modifying the direction contained in Ext.P6 order dated 23.09.2022 in I.A.No.1 of 2021 in O.P.No.851 of 2021 of the Family Court, Kannur, as one granting the **OP (FC) NO. 593 OF 2022** 9 respondent herein-father visitation right of the minor child from 10.30 a.m. to 5.00 p.m. on alternate Sundays in the premises of the Family Court. After a period of three months, the Family Court shall consider the question as to whether the said arrangements requires modification, by granting overnight custody to the respondent herein-father. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** DCS/08.11.2022 **OP (FC) NO. 593 OF 2022** 10 ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE DIVORCE AGREEMENT DATED 7.5.2016 EXHIBIT P2 TRUE COPY OF THE PETITION IN OP 851/21 FILED BEFORE THE FAMILY COURT, KANNUR DATED 16.8.2021** **EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT FILED IN OF IA.1/2021 IN OP 851/2021 OF THE FAMILY COURT, KANNUR** - **EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT IN IA 1/2021 IN OP 851/2021 DATED 13.1.2022 FILED BEFORE THE FAMILY COURT, KANNUR** **EXHIBIT P5 TRUE COPY OF THE FIR WITH FI STATEMENT DATED 2.9.2021 IN CRIME NO. 506/2021 OF THE THALASSERY POLICE STATION EXHIBIT P6 TRUE COPY OF THE ORDER IN IA 1/2021 IN OP 851/2021 DATED 23.9.2022 OF THE FAMILY COURT, KANNUR** ## **RESPONDENT EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE POSTAL MONEY ORDER RECEIPT DATED 14-10-2022 ISSUED BY THE POSTAL DEPARTMENT.** **EXHIBIT R1(B) TRUE COPY OF THE POSTAL INTIMATION DATED 18-10-2022 INTIMATING THE REFUSAL OF THE MONEY. EXHIBIT R1(C) TRUE COPY OF THE BIRTH CERTIFICATE DATED 11-09-2014 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, KANNUR MUNICIPALITY EXHIBIT R1(D) TRUE COPY OF THE BIRTH CERTIFICATE DATED 12-10-2019 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, KANNUR MUNICIPALITY**