O.P.(FC) No.630 of 2022 / Jithu Jose Parambath v. Namitha Johny Mangan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022/25TH KARTHIKA, 1944 O.P.(FC) NO. 630 OF 2022** **AGAINST THE ORDER DATED 01.11.2022 IN I.A.NO.2 OF 2022 IN O.P.NO.976 OF 2022 OF THE FAMILY COURT, PALAKKAD PETITIONERS:** - **1 JITHU JOSE PARAMBATH AGED 37 YEARS, S/O P.D. JOSE, RESIDING AT PARAMBATH HOUSE, ULLAS NAGAR, STREET NO.2, PARUVASSERY POST, PALAKKAD, PIN – 678686.** - **2 EVANA (MINOR)** **AGED 4 YEARS, REPRESENTED BY GUARDIAN JITHU JOSE PARAMBATH, AGED 37 YEARS, S/O P.D. JOSE, RESIDING AT PARAMBATH HOUSE, ULLAS NAGAR, STREET NO.2, PARUVASSERY POST, PALAKKAD, PIN – 678686.** ## **BY ADV R.HARISHANKAR** ## **RESPONDENTS:** ## **NAMITHA JOHNY MANGAN** **AGED 32 YEARS, D/O JHONY M.D., MANGAM VEEDU, PARALAM DESOM, KODANNUR VILLAGE, THRISSUR TALUK, GUJARATH, ADDRESS: F/14, ARSRAY, NEAR NESSURG INDIAN BRIDGE HANSOL, SARDHAV NAGAR POST, AHMEDABAD, GUJRATH, PIN – 382475.** 2 O.P.(FC) No.630 of 2022 **BY ADVS. SABU GEORGE P.B.KRISHNAN P.B.SUBRAMANYAN MANU VYASAN PETER** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 ## O.P.(FC) No.630 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioner is the father of the minor child Evana, aged 4 years. The respondent is the mother. She filed O.P.No.976 of 2022 before the Family Court, Palakkad, seeking custody of the child Evana, who is their elder daughter. The respondent also filed I.A.No.2 of 2022 in that O.P. seeking interim custody of the child. As per Ext.P7 order dated 01.11.2022 the Family Court allowed that interlocutory application on the following terms:- “1. The respondent/father is directed to hand over the custody of the minor female child named Ivana Jithu to the petitioner/mother till the disposal of the main petition; 2. The respondent shall produce the minor female child named Ivana Jithu before the C.M.O/in-charge of this court at 10.30 a.m on 05.11.2022 and hand over the child to the C.M.O/in-charge; 3. The C.M.O/in-charge shall take custody of the said minor child and hand over custody to the petitioner/mother forthwith; 4. The petitioner is allowed to have the interaction with the minor children (both) on all 1[st] and 4[th] 4 O.P.(FC) No.630 of 2022 Saturdays from 2.30 am to 4.30 p.m till the disposal of the main petition; 5. The petitioner/mother is hereby directed to produce the children before the C.M.O of this court on all 1[st] and 4[th] Saturdays at 2.30 p.m and shall hand over the custody of the children to the respondent/ father upto 4.30 p.m; 6. The respondent shall handover the custody of the minor children at 4.30 p.m to the petitioner in the presence of the C.M.O/in-charge; 7. The respondent/father shall not cause any annoyance or inconvenience to the children remaining in his custody; 8. The respondent/father shall pay Rs.750/- to the petitioner/mother towards the travelling expense on all the interaction days; 9. The respondent/father is also permitted to interact with the minor children through video call on all Mondays, Thursdays and Sundays from 7 p.m to 7.30 make necessary arrangements for the same in time; 10. It is made clear that the 2[nd] child was born only on 05.07.2022. That means, 2[nd] child is now aged only 04 months old. So, the respondent/father shall take utmost care and give such a consideration to the said child during the course of his interaction.” The petitioner, aggrieved of the said order, has filed this Original Petition under Article 227 of the Constitution of India. 5 O.P.(FC) No.630 of 2022 2. When this matter came up for admission on 08.11.2022, notice was ordered to be served on the respondent. Operation of Ext.P7 order was stayed for a period of two weeks. 3. On 15.11.2022, the respondent entered appearance through counsel. Having heard the counsel on either side, we directed the petitioner and the respondent to appear before the court personally along with the child. In terms of the said order, both parties along with the child appeared before the Court today. After interacting with them, we have directed them to appear before the Family Counselling Centre attached to the High Court Legal Services Committee for counselling. They reported back after counselling at 4.00 p.m. We have perused the report submitted by the Counsellor in the sealed cover. We have also interacted with the child, petitioner and the respondent. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6 O.P.(FC) No.630 of 2022 5. Marriage between the petitioner and the respondent was solemnised on 18.12.2016. Evana was born in that wedlock on 16.09.2018. They have a younger child and it is only 4 months old. The respondent filed O.P.No.976 of 2022 alleging that the petitioner retained custody of the child Evana after taking her along with him from the hospital where she was admitted for the second delivery. For the last four months, the custody of Evana has been retained by the petitioner and as he refused to give the child back, she filed O.P.No.976 of 2022. She has also filed I.A.No.2 of 2022 seeking interim custody. The petitioner filed a counter resisting the said application. He has set out several reasons for not to hand over custody of the child to the respondent. The Family Court after considering the rival contentions and interacting with the child held that the child has to be sent along with the respondent. The petitioner was allowed visitation right on first and fourth Saturdays of every month between 2.30 p.m. and 4.30 p.m. 7 O.P.(FC) No.630 of 2022 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 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** (supra) the Apex Court noticed that a child, especially a child of tender years requires the 8 ## O.P.(FC) No.630 of 2022 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 denied any visitation rights or contact with the child. Courts 9 ## O.P.(FC) No.630 of 2022 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. 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 10 ## O.P.(FC) No.630 of 2022 welfare of the child must get precedence over the individual or personal rights of the parents. 9. From the rival pleadings and also from our interaction with the parties, we find that there are differences of opinion between them, in our view, of trivial nature. There cannot be any dispute to the proposition that a child wants love and affection of both father and mother. Child Evana, from her responses, is very fond of interacting with her sister. We noticed that she was happy to be with the baby sister. Ordinarily, siblings of tender age are to be allowed to live together. Siblings living together simulate companionship. They must have exposure to one another. Siblings’ relationship create in themselves a feeling of cohesiveness. Evana is now 4 years and the younger child is aged 4 months and at this stage, it is totally inappropriate to separate them. Taking such aspects into account, we are of the view that there is no reason to set aside Ext.P7 order altogether. Viewed the facts of the case in the light of the law laid down by the Apex Court in the aforesaid decision, we are of the view that a modification to the impugned order alone is required. 11 O.P.(FC) No.630 of 2022 In the circumstances, the Original Petition is disposed of by confirming Ext.P7 order dated 01.11.2022 of the Family Court, Palakkad with the following modifications: - i) The petitioner shall handover custody of the child to the respondent at 10.30 a.m. on 18.11.2022 in the presence of the Chief Ministerial Officer of the Family Court, Palakkad; - ii) The petitioner-father will be given interim custody of the child from 11.00 a.m. on the first and fourth Saturdays till 4.00 p.m. on the following Sunday every month; - iii) The petitioner will get and give back the child for the weekend custody as aforesaid from the house of the respondent; - iv) The petitioner and the respondent are prohibited from taking the child outside Kerala without permission of the Family Court, Palakkad; - v) The respondent shall admit the child in a standard educational institution near her present residence at Palakkad; and 12 ## O.P.(FC) No.630 of 2022 - vi) The parties may approach the Family Court, Palakkad, if any further modification in the matter of interim custody is required, after two months. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/P.G. AJITHKUMAR, JUDGE** dkr Clause (v) in the operative part of the judgment dated 16.11.2022 in O.P.(FC) No.630 of 2022 is corrected as per order dated 12.12.2022 in O.P.(FC) No.630 of 2022 as follows: - “v) The respondent shall admit the child in a standard educational institution near her present residence at Thrissur.” Sd/- JOINT REGISTRAR 13 O.P.(FC) No.630 of 2022 ## **APPENDIX OF OP (FC) 630/2022** ## **PETITIONER EXHIBITS** **EXHIBIT-P1 TRUE COPY OF OP NO.976/2022 FILED BY THE RESPONDENT WITH TYPED COPY OF EXHIBIT P1 EXHIBIT-P2 TRUE COPY OF IA NO.2/2022 OP NO. 976/2022 IN DATED 22.08.2022 EXHIBIT-P3 TRUE COPY OF OBJECTIONS DATED 06.12.2022 IN EXT.P2 EXHIBIT P4 TRUE COPY OF RECEIPT ISSUED BY PRINCIPAL, ST. FRANCIS SCHOOL, VADAKKENCHERY, PALAKKAD CONTAINING THE ADMISSION NUMBER AND CLASS OF MINOR DAUGHTER (EVANA) EXHIBIT-P5 TRUE COPY OF RECEIPT ISSUED BY PRINCIPAL, ST. FRANCIS SCHOOL, VADAKKENCHERY, PALAKKAD CONTAINING THE ADMISSION NUMBER AND CLASS OF 2ND PETITIONER EXHIBIT-P6 TRUE COPY OF CIRCULAR DATED 01.08.2022 AND TIME TABLE OF PUPILS ADMITTED TO ST. FRANCIS SCHOOL, VADAKKENCHERY EXHIBIT-P7 TRUE COPY OF ORDER DATED 01.11.2022 PASSED BY FAMILY COURT, PALAKKAD IN EXT.P2**