OPFC 342 OF 2019 (Siju A vs Neethu A)

1 OPFC 342 OF 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** **OP (FC).No.342 OF 2019** **OP(G&W) 1559/2018 OF FAMILY COURT,KOLLAM** ## **PETITIONER/S:** **SIJU.A AGED 38 YEARS SON OF AZHAKAPPAN, SHIBU BHAVAN, JAWAHR JUNCTION, PATTATHANAM P.O.KOLLAM.** **BY ADVS. SMT.K.MEERA SRI.BOBY MATHEW** ## **RESPONDENT/S:** **NEETHU.A AGED 28 YEARS DAUGHTER OF AJITH KUMAR, THAYILAZHIKATHU, PADINJATTATHIL, MUNDAKKAL EAST, KOLLAM-691 025.** ## **R1 BY ADV. SRI.JOHNSON GOMEZ** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30.1.2020, THE COURT ON 05-02-2020 DELIVERED THE FOLLOWING:** 2 OPFC 342 OF 2019 ## **JUDGMENT** ## **C.S.DIAS, J.** This original petition is filed under Article 227 of the Constitution of India challenging Ext P8 order passed by the Family Court, Kollam, directing that the respondent is entitled to have custody of the minor child as per the agreement dated 7.6.2017 entered between the petitioner and the respondent. 2. The case of the petitioner in this original petition is that, he was married to the respondent on 13.5.2008. In their wedlock, a male child, named, Sijin was born on 24.11.2012. Within a short span of time, differences of opinion arose between the couple. The marriage got irretrievably broken down. The respondent filed OP (G&W) No.698/2018 before the Family Court, Kollam seeking to declare her as the legal guardian of their minor son and give her the 3 OPFC 342 OF 2019 permanent custody of the child. The petitioner and the respondent arrived at an out of Court settlement and executed Ext P2 agreement dated 7.6.2017, agreeing to share the custody of the child. As per Ext P2 agreement, it was agreed in unequivocal terms that the permanent custody of the child would be with the respondent and that interim custody of the child would be given to the petitioner from Friday preceding the second Saturday till the morning of Monday, and also during school vacations. 3. Subsequently, the petitioner and respondent filed OP (SMA) 766/2018 under Sec.28 of the Special Marriage Act, to dissolve their marriage by a decree of divorce on mutual consent. The Family Court by Ext P3 order allowed the original petition and dissolved the marriage between the petitioner and the respondent. According to the petitioner, subsequent to Ext P3 order passed by the Family Court dissolving the marriage between the petitioner and respondent, the respondent 4 OPFC 342 OF 2019 started living with a person named Elias Lenni Morrison, who is a Christian. The petitioner has further alleged that the above person attempted to convert the child as a Christian. He also compelled the child to address him as father. The above person and the respondent physically assaulted the child. Therefore, it is not secure for the child to continue in the company of the respondent. 4. According to the petitioner, after interim custody of the child was handed over to him, the child refused to go back with the respondent complaining that the respondent and her partner harassed the child and illtreated him. From August, 2018, the child is living with the petitioner. He is a police constable and residing in the police quarters. His mother is giving excellent care to the child. 5. During the interregnum period, the respondent again filed OP (G&W) 1559/2018, seeking to appoint her as the legal guardian of the child and to get the 5 OPFC 342 OF 2019 permanent custody of the child. Along with the original petition, the respondent filed IA No. 3740/2018 (Ext P6) seeking interim custody of the child. 6. The petitioner opposed Ext P6 application. He filed a counter affidavit, inter alia, contending that the original petition itself is not maintainable since the earlier petition filed by the respondent is pending consideration. There is change of circumstances subsequent to decree of divorce passed by the Family Court because the respondent is now living with other man, which is caused hardship to the child. The petitioner prayed that the original petition as well as Ext P6 application be dismissed. 7. The Family Court, after considering Ext P6 application and Ext P7 written objection, passed Ext P8 order directing the petitioner and the respondent to adhere to the terms of compromise that was arrived at between the parties in Ext P2 agreement, wherein both parties had in unequivocal terms agreed to share the 6 OPFC 342 OF 2019 custody of the child as per the terms and conditions mentioned in the agreement. 8. It is challenging the above order that this original petition is filed. 9. We have heard Smt Meera.K, the learned counsel for the petitioner and Sri.Johnson Gomez, the learned counsel for the respondent. 10. The crux of the dispute in this original petition is whether the petitioner and the respondent can wriggle out of the terms and conditions in Ext P2 agreement that was entered between them, regarding sharing the custody of the child. 11. The Hon'ble Supreme Court in **Anjali Kapoor vs Rajiv Baijal [(2009) 7 SCC 322]** has categorically declared the law that in a battle for custody of the child, Court should see what would best serve the welfare and interest of the child, which is the soul and predominant criteria and not the legal rights of the warring parents. 7 OPFC 342 OF 2019 12. In a recent decision of the Hon'ble Supreme Court in **Yashita Sahu vs State of Rajasthan and others [2020 SCC On Line (SC) 50]** rendered on ## 20.1.2020, it is observed as follows: “18. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that 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 the custody of the child. The court must therefore be very vary of what is said by each of the spouses. 19. A child, especially a child of tender years requires the love, affection, company, 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, 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 the parents. 8 OPFC 342 OF 2019 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 the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.” 13. The law on sharing of custody and visitation rights of child has been succinctly declared by the Hon'ble Supreme Court in the aforequoted authoritative precedents. 14. It is not in dispute that the petitioner and the respondent, on their own free will and volition, entered into Ext P2 agreement, whereby they came to terms regarding the sharing of the custody of their son. Subsequently, on the basis of the said agreement, their marriage was also dissolved by Ext P3 decree. It is 9 OPFC 342 OF 2019 much later in August 2018, that the petitioner stopped sending the child with the respondent on the allegation that the respondent is living with other person. 15. It is an undisputed fact that Ext P2 agreement is validly executed and it was filed in Ext P1 original petition. The terms of Ext P2 have not been varied or modified. In the subsequent proceedings, filed by the respondent, namely OP (SMA) 1559/2018 the Family Court rightly, after considering Exts P6 application and P7 objection, held that the parties are still governed by the terms and conditions of Ext P2 agreement that was executed between them on the anterior date in the earlier inter party proceeding in respect of the same cause of action. The Family Court rightly granted the respondent custody of the child only as agreed between the petitioner and the respondent in Ext P2 agreement. The Family Court directed the petitioner and the respondent to comply with clauses (3) to (6) in Ext P2. The course adopted by the Family Court 10 OPFC 342 OF 2019 cannot be found fault with because it is on record that the petitioner and respondent that they came to terms regarding sharing of custody of the child. The parties are estopped from wriggling out of the agreed terms. The petitioner cannot have any grievance or complaint regarding the alleged relationship between the respondent and her alleged partner, especially after his marital tie with the respondent has been snapped. The petitioner is legally bound to comply with the terms and conditions mentioned in Ext P2 agreement. There is no order passed by any competent Court modifying or varying the terms of Ext P2. Therefore, we do not find any circumstances warranting invocation of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. We, however, abjure to go into further merits of the case, as we are conscious that the original petition is pending consideration before the Family Court. The Family Court shall, untrammeled by any observation in this judgment, 11 OPFC 342 OF 2019 consider and dispose of OP(G&W) 1559/2018 as expeditiously as possible, in accordance with law, at any rate within a period of four months from the date of receipt of a copy of this judgment. With these observations, the original petition is dismissed. Sd/- **K.HARILAL JUDGE** sd/- **C.S.DIAS JUDGE** sks/1.2.2020 12 OPFC 342 OF 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** - **TRUE COPY OF OP (GW) 698 OF 2018 DATED 22.5.2018 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOLLAM** - **EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 7.6.2017 (WRONGLY STATED AS 7.6.2017) ENTERED INTO BETWEEN THE PETITIONER AND RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 31.7.2018 PASSED BY THE FAMILY COURT, KOLLAM IN THE JOINT PETITION -OP(SMA) 766 OF 2018** - **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 5.9.2018 ALONG WITH ITS ACCOMPANIMENTS ISSUED TO THE PETITIONER FROM THE KOLLAM EAST POLICE STATION UNDER THE RIGHT TO INFORMATION ACT** - **EXHIBIT P5 TRUE COPY OF THE OP (G&W) 1559 OF 2018 DATED 23.11.2018 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOLLAM** - **EXHIBIT P6 TRUE COPY OF I.A NO 3740 OF 2018 DATED 23.11.2018 IN OP (G&W) 1559 OF 2018 BEFORE THE FAMILY COURT, KOLLAM** - **EXHIBIT P7 TRUE COPY OF OBJECTION DATED 4.4.2019 FILED IN IA NO 3740 OF 2018 IN OP (G&W) 1559 OF 2018 BEFORE THE FAMILY COURT, KOLLAM** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 29.4.2019 PASSED BY THE FAMILY COURT, KOLLAM IN I.A NO 3740 OF 2018 IN OP (G&W) 1559 OF 2018**