O.P.(FC) No.680 of 2022: Midhun Kumar, Mohanan Pillai & Indira v. RadhaKrishnan Nair & Vijaya Lekshmi

## **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 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944** **O.P.(FC) NO. 680 OF 2022** **AGAINST THE ORDER DATED 29.08.2022 IN I.A.NOS.1 OF 2021, 6 OF 2022 AND 7 OF 2022 IN O.P.(G&W) NO.1321 OF 2021 ON THE FILE OF THE FAMILY COURT, MAVELIKKARA** **PETITIONERS:** - **1 MIDHUN KUMAR,** **AGED 30 YEARS, S/O MOHAN PILLAI, EDAPPURAYIL, KANDALLOOR SOUTH MURI, KANDALLOOR VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690506.** - **2 MOHANAN PILLAI,** **AGED 60 YEARS, S/O GOPI PILLAI, EDAPPURAYIL, KANDALLOOR SOUTH MURI, KANDALLOOR VILLAGE, KARTHIKAPALLY TALUK ALAPPUZHA DISTRICT, PIN – 690506.** - **3 INDIRA,** **AGED 56 YEARS, W/O MOHANAN PILLAI, EDAPPURAYIL, KANDALLOOR SOUTH MURI, KANDALLOOR VILLAGE, KARTHIKAPALLY TALUK ALAPPUZHA DISTRICT, PIN – 690506.** **BY ADVS.** **SATHEESH MOHANAN SREEJITH S. NAIR T.U.ANUKRISHNA P.A.MEERA SAIFUDHEEN K.P. COLIN ANTONY DCRUZ** 2 O.P.(FC) No.680 of 2022 ## **RESPONDENTS:** - **1 RADHAKRISHNAN NAIR,** **AGED 58 YEARS, S/O PADMANABHAN NAIR, RADHALAYAM, MUTHUKULAM SOUTH MURI, MUTHUKULAM VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690535.** - **2 VIJAYALEKSHMI,** **AGED 44 YEARS, W/O RADHAKRISHNAN, RADHALAYAM, MUTHUKULAM SOUTH MURI, MUTHUKULAM VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690535.** **BY ADVS.** **P.V.SARITHA VENUGOPAL** **DIPU.R** **K.S.BAIJU** **N.P.RUKSANA** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.680 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The respondents in O.P.(G&W) No.1321 of 2021 before the Family Court, Mavelikkara are the petitioners. They are aggrieved of Ext.P7 order, as per which the interim custody of the minor child Hrithik was allowed to the respondents, who are the maternal grandparents. The petitioners challenge the said order in this Original Petition filed under Article 227 of the Constitution of India. 2. On 12.12.2022, notice on admission was directed to be served on the respondents. The respondents entered appearance through their learned counsel pursuant to notice. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 4. The petitioners are the father and paternal grandparents of the child Hrithik, who born on 19.08.2020. The mother of the child is no more. She expired on 29.04.2021 The respondents filed O.P.(G&W) No.1321 of 4 O.P.(FC) No.680 of 2022 2021 before the Family Court, Mavelikkara seeking permanent custody of the child. They have also filed I.A.No.1 of 2021 for interim custody. A compromise was seen entered into between the parties regarding interim custody. But later, the petitioners filed I.A.No.7 of 2022 seeking to set aside the compromise and to revise the order regarding interim custody of the child. I.A.No.6 of 2022 was filed by the respondents seeking custody of the child during pendency of the original petition, in modification of the compromise. The Family Court, after hearing both sides, disposed of the interlocutory applications as per Ext.P7 order as follows:- “(a) the compromise recorded in I.A.1 of 2021 is set aside; (b) the petitioners in I.A.1 of 2021 are allowed to have interim custody of the minor Hrithik from 10 a.m. on every Saturday till 5 p.m. of every Sunday, commencing from 03.09.2022. The petitioners shall take custody of the minor from the house of the respondents and the respondents shall get back custody of the minor from the house of the petitioners.” 5 O.P.(FC) No.680 of 2022 5. The learned counsel appearing for the petitioners would submit that the child, aged only two years, has been suffering from Pneumonia and under treatment. When the health condition of the child was not conducive, giving custody of the child to the respondents is not in the welfare of the child. Further, considering the tender age of the child, giving custody to the respondents for a long duration, i.e., from 10.00 a.m. till 5.00 p.m. on every Saturday is not in the best interest of the child. 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 6 ## O.P.(FC) No.680 of 2022 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 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 7 ## O.P.(FC) No.680 of 2022 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. 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 8 O.P.(FC) No.680 of 2022 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. 9. The mother of the child is no more. The father, the 1[st] petitioner, is abroad. Now, grandparents alone are available to take care of the affairs of the child. When the respondents, who are the maternal grandparents, claimed that periodical visitation by them to the child is required for the well-being and proper upbringing of the child, it cannot be said that their stand is incorrect. The child is aged only two years. It certainly should get the love and affection from parents. In 9 O.P.(FC) No.680 of 2022 their absence, such care and protection can be had from the grandparents. The right to be in custody of the maternal grandparents is equal to that of the paternal grandparents. In such circumstances, we are of the view that the order of the Family Court allowing the respondents to have interim custody of the child on every Saturday, especially when they are residing at a nearby place, is correct. From Ext.P8 discharge card, it is seen that the child was discharged from the hospital on 2.11.2022. Therefore, the illness of the child is not a reason to interfere with Ext.P7 order. Accordingly, we hold that this Original Petition does not have merits and accordingly the same is dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.680 of 2022 ## **APPENDIX OF OP (FC) 680/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** - **THE TRUE COPY OF O.P.(G&W) NO.1321/21 BEFORE THE FAMILY COURT MAVELIKKARA** - **EXHIBIT P2** - **THE TRUE COPY OF IA NO. 1/21 IN O.P. (G&W) NO.1321/21 BEFORE THE FAMILY COURT MAVELIKKARA, FOR THE INTERIM CUSTODY OF THE MINOR CHILD** - **EXHIBIT P3 THE TRUE COPY OF OBJECTION IN IA NO. 1/21 IN O.P.(G&W) NO.1321/21 BEFORE THE FAMILY COURT MAVELIKKARA, FOR THE INTERIM CUSTODY OF THE MINOR CHILD** - **EXHIBIT P4 THE TRUE COPY OF COMPROMISE IN IA NO. 1/21 IN O.P.(G&W) NO.1321/21 BEFORE THE FAMILY COURT MAVELIKKARA, FOR THE INTERIM CUSTODY OF THE MINOR CHILD** - **EXHIBIT P5 THE TRUE COPY OF I.A. NO.6 /2022IN O.P. (G&W) NO.1321/21 BEFORE THE FAMILY COURT MAVELIKKARA, FOR THE INTERIM CUSTODY OF THE MINOR CHILD** - **EXHIBIT P6 THE TRUE COPY OF IA NO. 7/2022 IN O.P. (G&W) NO.1321/21 BEFORE THE FAMILY COURT MAVELIKKARA, FOR THE INTERIM CUSTODY OF THE MINOR CHILD** - **EXHIBIT P7** - **THE TRUE COPY OF THE COMMON ORDER IN IA NO. 1/2021, 6/2022 AND 7/2022 IN O.P (G&W) NO. 1321/2021 OF FAMILY COURT, MAVELIKARA DATED 29/08/2022** - **EXHIBIT P8** **TRUE COPY OF THE DISCHARGE CARD OF THE CHILD FROM PARABRAHMA SPECIALTY HOSPITAL AND RESEARCH CENTER (OP NO. 27059) DATED 02.11.2022.**