OP (FC) Nos.420 and 442 of 2021, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 OP (FC) NO. 420 OF 2021** **AGAINST THE ORDER DATED 30.06.2021 IN I.A.NO.1 OF 2020 IN OP NO.913 OF 2020 OF THE FAMILY COURT,KOLLAM** ## **PETITIONER/RESPONDENT:** ## **HAZEENA** **AGED 36 YEARS** **D/O.SHAMSUDHEEN, PLAVILA THEKKETHIL HOUSE, NEERAVIL PERINAD P.O., KOLLAM DISTRICT.** **BY ADVS. C.DHEERAJ RAJAN K.ANAND (A-1921)** ## **RESPONDENTS/PETITIONERS:** - **1 FAIZALUDHEEN AGED 36 YEARS** **S/O.NAZARUDHEEN, NAHIDHAS VEEDU, PULLICHIRA P.O., ALUMMOODU, MAYYANAD VILLAGE, KOLLAM DISTRICT REP. BY POWER OF ATTORNEY HOLDER ANZALUDHEEN - 691 304.** - **2 SAREENA** **AGED 57 YEARS, W/O.NAZARUDHEEN, NAHIDHAS VEEDU, PULLICHIRA P.O., ALUMMOODU, MAYYANAD VILLAGE, KOLLAM DISTRICT - 691 304.** ## **BY ADV K.RAKESH** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 20.02.2023, ALONG WITH OP (FC).442/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) Nos.420 and 442 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA,** ## **1944** **OP (FC) NO.442 OF 2021** - **(I.A.NO.1 OF 2020 IN O.P.NO.913 OF 2020 OF THE FAMILY** ## **COURT,KOLLAM** ## **PETITIONER/2ND PETITIONER:** **1 SAREENA** **AGED 57 YEARS** **W/O.NAZARUDEEN, RESIDING AT NAHIDAS VEEDU, PULLICHIRA.P.O, ALUMOODU, MAYYANAD VILLAGE, KOLLAM DISTRICT-682032.** ## **BY ADV. K.RAKESH** ## **RESPONDENT/RESPONDENT :** - **1 HASEENA S, AGED 36 YEARS D/O.SHAMSUDEEN, RESIDING AT PLAVILA THEKKATHIL VEEDU, NIRAVIL, PERINADU.P.O, KOLLAM-691601.** - **2 FAIZALUDEEN.N, AGED 36 YEARS** - **S/O.NAZARUDEEN, RESIDING AT PLAVILA THEKKATHIL VEEDU, NIRAVIL, PERINADU.P.O, KOLLAM-691601.** - **BY ADVS.** ## **ANAND KALYANAKRISHNAN C.DHEERAJ RAJAN(K/579/2013)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 20.02.2023, ALONG WITH OP (FC).420/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) Nos.420 and 442 of 2021 ## **J U D G M E N T** ## P.G.Ajithkumar, J. Father of four children namely, Faiha Faisaludheen, Falsa Faisaludheen, Fisan Bin Faisaludheen, and Fathima Faisaludheern aged 9 years, 5 years, 4 years and 2 ½ years respectively, along with his mother filed O.P.No.913 of 2020 before the Family Court, Kollam for getting custody of the children. Respondent is the mother with whom the children are now residing. I.A.No.1 of 2020 was filed by the father and his mother seeking interim custody of the children. Father is working abroad. That petition was disposed of by the Family Court as per the order dated 30.06.2021 by which arrangements regarding visitation right of the children by the father and grandmother has been made. Mother filed O.P.(FC) No.420 of 2021. She has objection to the order to the extent it allowed internal custody to the paternal grandmother. O.P(FC) No.442 of 2021 was filed by the paternal grandmother contending that custody of the children should have been given to her and the father of the children as requested. 4 O.P.(FC) Nos.420 and 442 of 2021 2. After appearance of respondents in the respective original petitions, the parties were referred for mediation but no settlement could be arrived at. On 20.01.2022, this Court directed the father to pay an amount of Rs.25,000/- to the children and their mother. That order was complied. Various orders regarding interaction of the father with the children were passed by this Court. As per order dated 07.04.2022, this Court ordered that order dated 30.03.2022 allowing the father to interact with the children on every Friday and Monday between 7.00 p.m and 8.00 p.m through Zoom or Google meet shall be in force in supersession of all other interim orders regarding custody of the minor children. 3. The paternal grandmother filed I.A.No.1 of 2023 in O.P.(FC) No.442 of 2021 stating that father of the children would arrive India by 17.02.2023 for a period of one week and therefore interim custody of the children should be given to the father during that period. The mother has filed a counter affidavit pointing out inconvenience of taking the children for giving interim custody and also inadequacy of maintenance amount to be paid by the father. 5 O.P.(FC) Nos.420 and 442 of 2021 4. Heard the learned counsel appearing on either side. 5. Operative portion of the impugned Order of the Family Court, Kollam dated 30.06.2021 reads as follows: “10. Exconsequentia, 1. I.A.No.1/2020 is allowed in part and the following orders are passed: (a) The interim custody of the children is granted to the respondent/mother until further orders subject to the intermittent cyclic custody right, visitation rights and contact rights of the petitioners as elaborated infra: (i) The respondent/mother shall hand over the custody of the children to the petitioner No.2 at 10.00 a.m. on the second Saturday of every month and the petitioner No.2 is allowed to hold the custody of the children till 01.00 p.m. on the same day. (c) The venue of exchange shall be the premises of this court and on termination of the permitted period, the petitioner No.2 shall bring the children back to the court premises and she shall also ensure the safe return of custody to the respondent/mother. It is also made clear that, if the parties can mutually agree, they can change the venue of exchange to the residential premises of either of them and if they agree for the same, they shall create a written document evincing the consensus. (c) During the non-custody time, the petitioner 6 O.P.(FC) Nos.420 and 442 of 2021 No.1/father is permitted to talk to the minors over phone (landline/mobile) every day for 5 to 10 minutes between 07.00 p.m. and 09.00 p.m. (IST). (d) Free exchange of emails, photographs, sms, voice messages, video messages, are allowed in between the minor and the non-custody party. (e) Once the petitioner No.1/father returns to his native and is available for a period not less than a week, he can approach this court to modify the above order of interim custody and on such a situation, untramelled by any of the observations made above, a decision would be taken afresh. (3) No order as to costs.” 6. The father is still working abroad. The learned counsel appearing for him would submit that instead of 17.02.2023, he plans to come to India on 21.02.2023. Since the children are residing along with the mother, and the father reaches native place, it is only appropriate to give him interim custody of the children, especially in the light of clause 10.1. (e) in the impugned order. The essential objection of the mother is that giving custody of the children during such a long period will adversely effect the studies of the children. Further sufficient amount is not being paid towards maintenance by the father. 7 O.P.(FC) Nos.420 and 442 of 2021 7. We have considered in detail the contentions of both sides as regards the visitation right stipulated in the impugned order. Children are now living together along with the mother. The father is abroad. Arrangements are made for the father to interact with the children through video conferencing. There is no complaints with regard to the said arrangements. Sufficient opportunity is provided as per the impugned order to the grandmother to interact with the children. After anxious consideration of the submissions by either side, we are of the view that the order under challenge requires no interference except the modification this Court has made as per the order dated 30.03.2022. 8. When the father reaches and stays in Kerala, it is his right to have interim custody of the children provided it does not hamper the interest of the children. When the children are with the mother it is only appropriate to allow the father to have periodical interim custody, which is required to maintain the bondage of children with both parents. 9. In **Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67]** the Apex Court held that law is well settled by a 8 ## O.P.(FC) Nos.420 and 442 of 2021 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 human right. Just because the parents are at war with each 9 O.P.(FC) Nos.420 and 442 of 2021 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 10 ## O.P.(FC) Nos.420 and 442 of 2021 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. 12. Taking the law laid down in the aforesaid decision, we allow the request in I.A.No.1 of 2023 to the extent that the father shall be given interim custody of all the four 11 ## O.P.(FC) Nos.420 and 442 of 2021 children from 5.00 pm on 25.02.2023 till 5.00 pm on 28.02.2023. Custody shall be handed over and taken back through the Family Court, Kollam. The father shall see that studies of the children are not affected while they are in his custody. 13. Now, the father is making payment of Rs.10,000/every month towards maintenance for the four children and their mother. We are of the view that the amount of maintenance shall be more. Hence, as an interim arrangement the father is ordered to pay every month Rs.20,000/- towards interim maintenance for the four children and their mother till an order in that regard is passed by the appropriate Court. These original petitions and I.A.No.1 of 2023 in O.P.(FC) No.442 of 2021 are disposed of, subject to the above and the order of this Court dated 30.03.2022. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV 12 O.P.(FC) Nos.420 and 442 of 2021 The date mentioned as 25/02/2023 in paragraph no.12 in the common judgment dated 20/02/2023 in O.P.(FC) Nos.420 of 2021 and 442 of 2021, stands corrected as 24/02/2023. Sd/- **JOINT REGISTRAR** 13 O.P.(FC) Nos.420 and 442 of 2021 ## **APPENDIX OF OP (FC) 442/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE PETITION IN OP.NO.913/2020 PENDING BEFORE THE FAMILY COURT, KOLLAM** - **Exhibit P2 THE TRUE COPY OF THE PETITION IN I.A.NO.1/2020 IN O.P NO.913/2020 OF THE FAMILY COURT, KOLLAM** - **Exhibit P3 THE TRUE COPY OF THE RECEIPT DATED 14.12.2020 ISSUED FROM THE GRACE INTERNATIONAL SCHOOL, KOLLAM FOR THE FEES OF FAYHA FAISALUDEEN** **Exhibit P3(A)** - **THE TRUE COPY OF THE RECEIPT DATED 14.12.2020 ISSUED FROM THE GRACE INTERNATIONAL SCHOOL,KOLLAM FOR THE FEES OF FALZAH FAISALUDEEN** - **Exhibit P4 THE TRUE COPY MONEY ORDER RECEIPTS TEN IN NUMBER** **Exhibit P5 THE TRUE COPY OF THE INTERIM ORDER IN I.A.1/2020 IN OP NO.913/2020 DATED 30.06.2021.** 14 O.P.(FC) Nos.420 and 442 of 2021 ## **APPENDIX OF OP (FC) 420/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 THE TRUE COPY OF I.A.01/2020 IN OP 913/2020. Exhibit P2 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.1/2020 IN OP.913/2020. Exhibit P3 THE TRUE COPY OF THE ORDER DATED 30/06/2021 IN I.A.1/2020 IN OP.913/2020 ON THE FILES OF THE FAMILY COURT, KOLLAM.**