O.P.(FC) No.383 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** **FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944** **O.P.(FC) NO. 383 OF 2022 AGAINST THE ORDER DATED 20.04.2022 IN I.A.NO.2 OF 2021 IN O.P.NO.1455 OF 2021OF THE FAMILY COURT, THRISSUR** ## **PETITIONERS:** **1 P.M. SENAN AGED 76 YEARS, S/O S. MADHAVA PANICKER, MIDHILA, MEC ROAD, THRIKKAKKARA P.O, KOCHI, PIN – 682021.** **2 S. SEETHA, AGED 66 YEARS, W/O P.M. SENAN, MIDHILA, MEC ROAD, THRIKKAKKARA P.O. KOCHI, PIN – 682021. BY ADVS. P.G.JAYASHANKAR P.K.RESHMA (KALARICKAL) S.RAJEEV SAJANA V.H VINITHA S.T.** ## **RESPONDENT:** **K.N. NAVEEN AGED 39 YEARS S/O NANDAKUMAR, C4 RUKMINI TEMPLE PARK, NEAR THIRUVAMBADI, THRISSUR, PIN – 680022.** **BY ADV PREMCHAND M M** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.383 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioners in O.P.No.1455 of 2021 before the Family Court, Thrissur have filed this Original Petition under Article 227 of the Constitution of India. They seek to set aside Ext.P8 order of the Family Court dated 20.04.2022. 2. This Original Petition was admitted on 04.07.2022. Pursuant to notice, the respondent entered appearance. 3. In terms of the directions issued by this Court, both parties appeared before this Court along with the child on 27.10.2022. We have interacted with the child Bhanvi, aged 13 years. 4. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 5. The petitioners are the maternal grandparents. The child is with his father, the respondent. The respondent is employed abroad and therefore the child is now staying with her paternal grandparents. The learned counsel appearing for 3 ## O.P.(FC) No.383 of 2022 the respondent would submit that the respondent is now in station. 6. The respondent, the child and also her mother Dr.Aswathy were in Kuwait for sometime. On 24.07.2013, the respondent, Dr.Aswathy and the child returned home. The mother is now no more. She died on 07.08.2013. Thereafter also, the respondent along with the child was in Kuwait. The respondent remarried, but that marriage was eventually separated. The petitioners stating that the second wife of the respondent informed them that the respondent was illtreating not only her, but also the child Bhanvi, the petitioners have filed O.P.No.575 of 2019 before the Family Court, Ernakulam, seeking custody of the child. That original petition was later transferred to the Family Court, Thrissur where it was numbered as O.P.No.1455 of 2021. I.A.No.2 of 2022 was filed by the petitioners seeking interim custody of the child. The respondent filed objection. The Family Court, after hearing both sides, and considering the documents brought on record, Exs.A1 to A5 and B1 to B4 and also after 4 O.P.(FC) No.383 of 2022 interacting with the child, held as per Ext.P8 that the child could not be given in the custody of the petitioners. However, the petitioners were allowed to interact with the child once in a month for two hours. The day was fixed as every second Saturday and interaction was scheduled at the office of the Family Court, Thrissur. 7. The Family Court, Thrissur observed in paragraph No.14 as to the result of interaction with the child and in paragraph No.16 the reasons for the finding, which are extracted below. “14. The minor who is presently studying in the 7[th] standard was produced before me. During my interaction with the child she appeared to be very much concerned about the well being of her father and she had posed an interesting question whether she could file a case against the persons who are torturing her father. The minor is visibly hostile to the maternal grandparents who are the petitioners herein. She was asked whether she is interested to reside with her maternal grandparents. But she confirmed that her residence is the residence of her father and that she does not want to go with the petitioners. The child is aged only around 12 years but she appeared to be 5 O.P.(FC) No.383 of 2022 matured enough to express her wishes. 15. xx xx xx 16. So considering the wish the minor, I have no hesitation to hold that there are no sufficient reasons to remove the custody of the minor from the respondent at the present stage of the litigation. Admittedly the child is now residing with the respondent and his family members. Therefore there are no reasons to hand over interim custody to the petitioners at the present stage. However, considering the hostile attitude of the minor towards the petitioners, I am of the view that the emotional bonding between the minor and the maternal grandparents shall be improved to a great extent for the better welfare of the child. Therefore, I am inclined to allow the petitioners to have interaction with the minor once in a month. Considering the welfare and well being of the child, it is only to be held that she must be allowed to continue in the custody of the respondent. The points are answered accordingly.” 8. When we interacted with the child also, she informed her reluctance go along with the petitioners. The child did not divulge what counted by her for not joining the company of the petitioners. However, when it is her strong desire not to go and stay along with the petitioners, it is inappropriate to compel her to go and stay along with the 6 O.P.(FC) No.383 of 2022 petitioners. So there is no reason for allowing the request of the petitioners to give them the custody of the child. 9. The reason for the petitioners' concern was that the respondent involved in a criminal case and that the second wife was not maintaining the child properly. The said marriage has already been dissolved. Despite there having a criminal case, the minor has been with the respondent all throughout. On the other hand, the minor has no much emotional attachment with the petitioners. In such circumstances, we find no reason to set aside Ext.P8 order. We however, find that being the grandparents, who are aged, their love and affection will also help the nurture the welfare of the child. 10. 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 7 ## O.P.(FC) No.383 of 2022 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. 11. 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 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 8 ## O.P.(FC) No.383 of 2022 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 ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents. 9 O.P.(FC) No.383 of 2022 12. Taking into account the principles laid down by the Apex Court in the aforesaid decision and also the facts and circumstances adverted to above, we are of the view that the custody of the child shall be with the respondent, but, there shall be slight modification to Ext.P8 order regarding the timing and periodicity of interaction. Accordingly, we direct that the petitioners shall have the right to interact with the child twice in a month for four hours each. This Original Petition is disposed of accordingly. The petitioners are allowed to interact with the child between 10.00 a.m. till 2.00 p.m. on the second and fourth Saturdays every month in the premises of the Family Court, Thrissur. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.383 of 2022 ## **APPENDIX OF OP (FC) 383/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE OP NO. 575 OF 2019 DATED 28.02.2019 FILED BY THE PETITIONERS EXHIBIT P2 TRUE COPY OF THE IA NO. 1248 OF 2019 DATED 28.02.2019 FILED BY THE PETITIONERS.** - **EXHIBIT P3 TRUE COPY OF COUNTER AFFIDAVIT DATED 24.06.2019 FILED BY THE RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT DATED 23.09.2019** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 11.12.2019 IN OP NO. 575 OF 2019 OF THE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 02.07.2021 IN OP(FC) NO. 162 OF 2020 PASSED BY THIS COURT.** - **EXHIBIT P7 TRUE COPY OF THE I.A. NO. 2 OF 2022 FILED BY THE PETITIONERS IN OP NO. 1455 OF 2021 ON THE FILES OF THE FAMILY COURT, THRISSUR** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 20.04.2022 IN IA NO. 2/2021 IN OP NO. 1455/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR.** **EXHIBIT P9 TRUE COPY OF THE REPORT FILED UNDER S. 167 OF THE CODE OF CRIMINAL PROCEDURE, 1973 BEFORE THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, THRISSUR IN CRIME NO. 3477/2020.** 11 O.P.(FC) No.383 of 2022 **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 08.10.2021 IN WPC NO. 15908 OF 2021 EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 22.04.2022 IN WPC NO. 10955 OF 2020**