O.P.(FC) No.584 of 2022

O.P.(FC) No.584 of 2022 1 ## **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 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944** **O.P(FC) NO.584 OF 2022** **AGAINST THE ORDER DATED 03.09.2022 IN I.A.NO.2 OF 2022 IN** **G.O.P.No.1681 OF 2022 ON THE FILE OF FAMILY COURT,THRISSUR** ## **PETITIONERS/RESPONDENTS 2&3:** - **1 RAJEEV AGED 48 YEARS S/O.VELAYUDHAN, NJALIYIL HOUSE, POOMALA POST, THEKKUMKARA VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, PIN - 680581** **2 DHANYA AGED 40 YEARS W/O.RAJEEV, NJALIYIL HOUSE, POOMALA POST, THEKKUMKARA VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, PIN - 680581** **BY ADVS. C.A.CHACKO C.M.CHARISMA BABU V.P.** ## **RESPONDENTS/PETITIONER&1ST RESPONDENT:** - **1 AJAYAN AGED 42 YEARS S/O.SWAMINATHAN, POTTANKOTT HOUSE, KUMBALAKKOD POST AND DESOM, PAZHAYANNUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, PIN - 680587** - **2 MANJU.M.N. @ MANJUSHA AGED 38 YEARS D/O.MOHANAN, AGED 38 YEARS, NJALIYIL HOUSE, POOMALA POST, THEKKUMKARA VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, PIN - 680581** **BY ADV. NIMMY JOHNSON** **THIS OP(FAMILY COURT)HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON 01.11.2022 DELIVERED THE FOLLOWING:** O.P.(FC) No.584 of 2022 2 ## **J U D G M E N T** ## Ajithkumar, J Respondents No. 2 and 3 in G.O.P.No.1681 of 2022 on the file of the Family Court, Thrissur have filed this Original Petition under Article 227 of the Constitution of India. The 1[st] respondent filed the G.O.P. for getting permanent custody of his 5-year-old daughter, Athmiya. He filed I.A.No.2 of 2022 in that G.O.P. for getting interim custody of the child. The petitioners have filed G.O.P No.1579 of 2022 seeking a prohibitory injunction restraining the 1[st] respondent, his mother, brother, and wife of the brother from removing the child from their custody. They filed I.A.No.2 of 2022 in G.O.P.No.1579 of 2022 seeking a temporary injunction. In that G.O.P the 1[st] respondent filed I.A.No.3 of 2022 claiming interim custody of the child. As per a common order dated 03.09.2022 interim custody of the child was given to the 1[st] respondent. Consequently, the petition for temporary injunction filed by the petitioners was dismissed. That common order is under challenge in this Original Petition. 2. On 17.10.2022 when this matter came up for O.P.(FC) No.584 of 2022 3 consideration, the 1[st] respondent entered appearance through his counsel. Notice was directed to be served on the 2[nd] respondent. Both parties were directed to be personally present along with the child before this court on 21.10.2022. Accordingly, both parties along with the child appeared at 10.15 a.m on 21.10.2022. We interacted with the child, its father and mother, and also the 1[st] petitioner. The child was allowed to be with the mother from 11.00 a.m. to 12.15 p.m. Again we have interacted with the child, his parents and also the 1[st] petitioner. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1[st] respondent. 4. The 1[st] respondent is the father. He filed G.O.P.No.1681 of 2022 seeking custody of the child. It was alleged that while he was abroad, the mother who is the second respondent along with the child was in her parental home. But she eloped with one Noushad after abandoning the child in the house of the petitioners. The petitioners are the uncle and aunt of the second respondent. They are issueless. O.P.(FC) No.584 of 2022 4 They filed G.O.P.No.1579 of 2022 claiming that since they have been bringing up the child treating it as their own daughter, they are entitled to be in custody of the child. The 1[st] respondent never was with the child and therefore he is not entitled to claim custody. Accordingly, they sought a prohibitory injunction against the 1[st] respondent and his relatives from gaining custody of the child. 5. The Family Court considered all three interlocutory applications together. The claim of the petitioners that they were entitled to continue in custody of the child was not accepted. The Family Court observed that allowing the child to continue in the custody of the petitioners would result in severing the bondage between the child and its parents. It is noticed by the Family Court that albeit the initial inhibition, the child desired to go along with the father. Taking all such matters into account, the Family Court placed the child in the custody of the father. 6. The learned counsel appearing for the petitioners would submit that ever since the birth of the child, the petitioners have been bringing her up for, the 2[nd] respondent O.P.(FC) No.584 of 2022 5 mother was away in connection with her employment. When the petitioners were bringing up the child and the child accepted them as its parents, it is quite against the interest of the child to send her along with the father, especially when, due to long separation, he has almost become a stranger. It is also pointed out that the 2[nd] respondent does not want to send the child along with the father and in such circumstances, the order of the Family Court denying the petitioners the custody of the child is sought to be set aside. 7. During the interaction, the child, although aged only 5 years, took a definite stand that she does not want to go with her mother or the petitioners. Of course, when she was sent along with the mother for interaction, she was freely moving with her mother as well as the petitioners. But we find that the child is emotionally attached to the 1[st] respondent and his parents who are available in his house. The allegation of the 1[st] respondent that the 2[nd] respondent eloped with another person is denied by her. She, however, stated that she has been staying at Koduvally in Kozhikode where she is working in a Jewellery. She complained that the 1[st] respondent O.P.(FC) No.584 of 2022 6 did not render even emotional support to her when her parents were ailing. She, therefore, does not favour sending the child along with the 1[st] respondent. ## 8. 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 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 O.P.(FC) No.584 of 2022 9. 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 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 O.P.(FC) No.584 of 2022 8 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. 10. 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. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents. 9 O.P.(FC) No.584 of 2022 11. While deciding the custody of the child, the primary consideration is the best interest and welfare of the child. When the parents are available and there is no apparent disqualification for them to have custody of the child, they can not be excluded. A 5 year old girl child, ideally, shall be with mother. The 2[nd] respondent however is not prepared to take the child along with her. She has her own reasons for it. The 1[st] respondent father earlier was working abroad. He is now residing at his native place along with his parents. Neither the petitioners nor the 2[nd] respondent pointed out any personal disqualification for keeping the child in his custody. The child prefers to be with his father also. 12. In the said circumstances, we do not find any fault in the view taken by the Family Court that the child should be entrusted with the 1[st] respondent. In the circumstances of the case, that is the best option in the interest and welfare of the child. Petitioners therefore have no right to get custody of the child. As held by the Apex court in the aforesaid decisions, a child must have love and affection from both the parents. O.P.(FC) No.584 of 2022 10 Therefore, we are of the view that the 2[nd] respondent shall be allowed to interact with the child at least over phone. Hence we direct that the 1[st] respondent shall allow the 2[nd] respondent to interact with the child through either video or audio call between 7.30 and 8.00 p.m on alternative days till the disposal of G.O.P No.1681 of 2022 pending before the Family Court, Thrissur. The Original Petition is disposed of accordingly. ## **Sd/ANIL K.NARENDRAN JUDGE** **Sd/P.G. AJITHKUMAR JUDGE** PV O.P.(FC) No.584 of 2022 11 ## **APPENDIX OF OP (FC) 584/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1** **TRUE COPY OF IA.NO.2/2022 IN GOP NO.1681/2022 FILED BY 1ST RESPONDENT** - **Exhibit P2 TRUE COPY OF OBJECTION FILED BY THE PETITIONERS DATED 8/8/2022 IN IA.NO.2/22** - **Exhibit P3 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WP(CRL)NO.651/2022 DATED 3/8/22** **Exhibit P4 TRUE COPY OF OBJECTION DATED 6/8/2022 OF 2ND RESPONDENT IN IA.NO.2/22** - **Exhibit P5** **TRUE COPY OF ORDER DATED 3/9/2022 IN IA.NO.2/2022 IN GOP NO.1681/2022 ON THE FILE OF FAMILY COURT, THRISSUR** - **Exhibit P6 TRUE COPY OF GOP NO.1681/2022 FILED BY 1ST RESPONDENT**