High Court of KeralaDivision Bench2022-10-11Original petitions disposed; custody arrangemen...

O.P.(FC) Nos.553 & 560 of 2022, High Court of Kerala at Ernakulam

Case / Petition Number:O.P.(FC) Nos.553 & 560 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
P.G. Ajithkumar
Judgment Date: 2022-10-11
Court Decision / Holding: i) the petitioner-mother is allowed to have custody of both the children until disposal of GOP No. 2242 of 2021; ii) custody of both children shall be handed over to the respondent-father on every Friday at 4.00 p.m. and he shall return the children to the petitioner-mother at 4.00 p.m. on the ensuing Sunday; and iii) giving custody and taking back shall be in the presence of the Chief Ministerial Officer, Family Court, Thrissur.
Final Disposition: Original petitions disposed; custody arrangement as stated.

Parties to the Case

Appellants / Petitioners

Saranya

Respondents

Anoop T.B

Legal Representation & Advocates

Counsels for Petitioners

• I.V. Pramod
• Saira SouraJ P.
• Sajeena Abdu T.K.

Counsels for Respondents

• K.M. Muhammed Hussain
• T.K. Vipindas

Case Synopsis & Summary

These petitions under Article 227 of the Constitution of India challenge a Family Court order in Thrissur that directed the petitioner mother to hand over custody of her minor twins, Ananya and Adithya (aged 3), to the father. The High Court, after hearing both parents and interacting with the children, emphasizes that the twins should live together to avoid emotional distress and to maintain sisterly affiliation. The matter traces to a dissolution of marriage in which custody was entrusted to the father; the mother later remarried and sought custody during the pendency of GOP No. 2242 of 2021. Interlocutory applications sought interim custody; the Family Court directed that Ananya be handed to the father at 10 am on 06.09.2022. The court relies on Supreme Court precedents including Yashita Sahu v. State of Rajasthan (2020), Vasudha Sethi v. Kiran Bhaskar (AIR 2022 SC 476), Rohith Thammana Gowda v. State of Karnataka (SCC Online 937), and Nithya Anand Raghawan v. State (NCT of Delhi) (2017) to affirm that the welfare of the child is the paramount consideration and that contact with both parents should be preserved wherever possible. In a practical arrangement, the court declines to remand the matter to the Family Court for further delay, and instead orders a structured custody schedule while GOP 2242/2021 is pending: the mother retains custody of both children until disposal of GOP 2242/2021 and the father receives them on weekends with supervised transfer in the presence of a Family Court official.

Provisions of Law Cited

Article 227 of the Constitution of India

Legal Doctrines & Maxims

Welfare of the child is the paramount consideration in custody matters.
A child has a right to love, affection, company, and protection of both parents.
Visitation rights should be provided to ensure continuity of contact with both parents when custody is altered.
The welfare of the minor prevails over the personal rights of parents; orders should secure welfare and stable contact with both parents.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that, given the twins' tender ages and their strong mutual bond, they should stay together under the mother's care during the pendency of GOP No. 2242/2021. She asserts that since the dissolution of marriage the father and his present wife have not adequately addressed the children's needs, and she has not abandoned her responsibilities, having remarried with due regard to the children's welfare. The petitioner emphasizes that the prior interim order, if continued, would disrupt the twins' emotional stability; she urges the court to modify the interim custody arrangement in order to ensure ongoing contact with the father, while preserving stability by keeping both children with her. She recognizes the legal principle that welfare is paramount but argues that the children's best interests demand not separating them or subjecting them to a protracted legal contest. She requests a custody order that maintains continuity of care, with proper visitation or contact provisions for the father, and to keep GOP 2242/2021 on track for final determination.

Contentions of Respondents

The respondent contends that custody should vest with him to preserve stability and continuity of care, particularly in light of the dissolution order which initially entrusted custody to him. He asserts that the mother's remarriage and her petition for interim custody were not supported by evidence showing a change in circumstances that would be in the children’s best interests. He argues that the Family Court's interim custody award was made with the consideration of the children's welfare in mind and should be maintained until final adjudication. He contends that the preservation of a stable routine and the child's relationship with his or her father outweighs a blanket request for shared custody, and that a structured schedule allowing visitation rights will enable the mother to maintain involvement while avoiding disruption to the children's growth and schooling. He seeks that the final order will reflect the children's welfare and ensure the continuity of care by the father.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Yashita Sahu v. State of Rajasthan	[(2020) 3 SCC 67]	Positive	Cited to support the proposition that welfare of the child is the paramount consideration in custody matters and that courts must not be misguided by technical objections if the child's welfare demands.
Vasudha Sethi and others v. Kiran V. Bhaskar and another	AIR 2022 SC 476	Positive	Cited to emphasize that visitation rights are essential to protect the child's welfare when custody is disturbed, ensuring the child remains in contact with both parents.
Rohith Thammana Gowda v. State of Karnataka & others	(2022) SCC Online SC 937	Positive	Cited to reiterate that welfare of the children is paramount in custody inquiries and to consider interim custody parameters when residence changes.
Nithya Anand Raghawan v. State (NCT of Delhi) & another	(2017) 8 SCC 454	Positive	Cited for the parameters to reckon with while deciding interim custody in changes of residence.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **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 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 O.P.(FC) NO. 553 OF 2022** **AGAINST THE ORDER DATED 03.09.2022 IN I.A.NO.10 OF 2022 IN G.O.P.NO.2241 OF 2021 OF THE FAMILY COURT,THRISSUR PETITIONER:** **SARANYA, AGED 22 YEARS, DAUGHTER OF NARAYANANKUTTY, AVILISSERY HOUSE, VALLACHIRA VILLAGE, THRISSUR, PIN – 680301.** **BY ADVS. I.V.PRAMOD SAIRA SOURAJ P. SAJEENA ABDU T.K.** ## **RESPONDENT:** **ANOOP T.B** **AGED 26 YEARS, SON OF BABU, THEKKANATH HOUSE, KOLAZHY P.O, THRISSUR DISTRICT, PIN – 680010. BY ADVS.** **K.M.MUHAMMED HUSSAIN T.K.VIPINDAS** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 06.10.2022, ALONG WITH OP (FC) NO.560 OF 2022, THE COURT ON 11.10.2022 DELIVERED THE FOLLOWING:** 2 O.P.(FC) Nos.553 & 560 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 TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 O.P.(FC) NO. 560 OF 2022** **AGAINST THE ORDER DATED 03.09.2022 IN I.A.NO.9 OF 2022 IN G.O.P.NO.2241 OF 2021 OF THE FAMILY COURT,THRISSUR PETITIONER:** ## **SARANYA** **AGED 22 YEARS, DAUGHTER OF NARAYANANKUTTY, AVILISSERY HOUSE, VALLACHIRA VILLAGE, THRISSUR DISTRICT, PIN – 680301.** **BY ADVS. I.V.PRAMOD SAIRA SOURAJ P. SAJEENA ABDU T.K.** ## **RESPONDENT:** **ANOOP T.B** **AGED 26 YEARS, SON OF BABU, THEKKANATH HOUSE, KOLAZHY P.O, THRISSUR, PIN – 680010.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 11.10.2022, ALONG WITH OP (FC) NO.553 OF 2022, THE COURT ON 11.10.2022 DELIVERED THE FOLLOWING:** 3 O.P.(FC) Nos.553 & 560 of 2022 ## **JUDGMENT** ## Ajithkumar, J. These petitions under Article 227 of the Constitution of India are filed by the petitioner in G.O.P.No.2242 of 2021 on the file of the Family Court, Thrissur. That G.O.P. was filed for appointing the petitioner as the guardian of her minor twins children Ananya and Adithya, who are aged 3 years. The petitioner filed I.A.No.9 of 2022 seeking interim custody of the minor children. I.A.No.10 of 2022 was filed by the respondent in G.O.P.No.2242 of 2021 seeking interim custody of the children. The said interlocutory applications were considered together and as per order dated 03.09.2022 the petitioner-mother was directed to handover custody of the minor child Ananya to the respondent at 10.00 a.m. on 06.09.2022. The petitioner challenges the said order in these Original Petitions. 2. On 29.09.2022, when O.P.No.553 of 2022 came up for consideration, notice was directed to be served on the respondent. Parties were directed to appear in person along 4 O.P.(FC) Nos.553 & 560 of 2022 with the minor children, Ananya and Adithya, before this Court and the Registry was directed to post O.P.(FC) No.560 of 2022 also today. 3. Both parties along with the children appeared before this Court. We have interacted with the petitioner, respondent and the children. 4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 5. The marriage between the petitioner and the respondent was dissolved as per the order in O.P.No.307 of 2021. At the time of dissolution of the marriage, custody of the children was entrusted with the respondent. Both sides admit that both of them remarried. The petitioner-mother alleging that the respondent and his present wife are not looking after the affairs of the children, filed G.O.P.No.2242 of 2021. I.A.No.2 of 2021 was filed by the petitioner for permission to have custody of the minor children Ananya and Adithya during pendency of the petition. The Family Court, 5 ## O.P.(FC) Nos.553 & 560 of 2022 Thrissur, as per the order in that I.A. permitted the respondent to have interim custody of the children till the final disposal of the case, taking into account the fact that at the time of dissolution of the marriage, she had handed over custody of the children to the respondent and that she later married another person. It is also noted that there was an agreement between the parties at the time of dissolution of marriage that the custody of the children should be with the respondent. 6. The children are twins. Considering their age, it is just and appropriate to allow them to be together. That is necessary for their proper upbringing and developing sisterly affection between them. Separating twins apart at the tender age of 3 years certainly would create emotional distress in them. We are convinced of that aspect when we interacted with the children as well. Equally, it is important that care and love of both parents are available to them during this age of growth. 6 O.P.(FC) Nos.553 & 560 of 2022 7. 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. 8. In **Yashita Sahu** (supra) the Apex Court noticed that a child, especially a child of tender years requires the 7 O.P.(FC) Nos.553 & 560 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 8 O.P.(FC) Nos.553 & 560 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. 9. 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 9 ## O.P.(FC) Nos.553 & 560 of 2022 welfare of the child must get precedence over the individual or personal rights of the parents. 10. In **Rohith Thammana Gowda v. State of Karnataka & others [(2022) SCC Online SC 937],** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an enquiry regarding custody of children. The Apex Court after referring to the law laid down in **Nithya Anand Raghawan v. State (NCT of Delhi) & another [(2017) 8 SCC 454]** explained the parameters to be reckoned with while deciding the question of interim custody in a case where there occurs change in the place of residence of children. 11. The Family Court after considering the fact that the petitioner obtained custody of one of the children, Ananya in a dubious manner and without approaching the court, even while the order in I.A.No.2 of 2021 allowing the respondentfather to have custody of both the children has been in vogue, ordered her to hand over custody of the child Ananya also to the respondent-father. It is observed that the petitioner ought 10 O.P.(FC) Nos.553 & 560 of 2022 to have approached the court if any modification to the order of interim custody passed by the court in I.A.No.2 of 2021 was required. In the facts and circumstances of the case, the Family Court, Thrissur is perfecdtly justified in declining the claim of the petitioner to have custody of the child Adithya. We also deprecate the way in which the petitioner obtained custody of the child, Ananya. 12. Now, the child Ananya is with the petitioner-mother and Adithya is with the respondent-father. It is absolutely necessary in the interest and welfare of the children to allow both of them together with one of the parents at a time. Therefore, they can live together interacting with each other. It may be appropriate to direct the petitioner to approach the Family Court for getting the order in I.A.No.2 of 2021 in G.O.P.No.2242 of 2021 modified. However, considering the fact that the G.O.P. is pending consideration of the Family Court, Thrissur, in which a final order regarding custody of the children is required to be passed, sending the parties to the Family Court at this interlocutory stage will cause further 11 O.P.(FC) Nos.553 & 560 of 2022 delay and inconvenience not only to the parents but also to the children. Hence, we avoid sending the matter for the decision of the Family Court. 13. In the said circumstances, we dispose of these Original Petitions by making the following arrangements: - i) the petitioner-mother is allowed to have custody of both the children, Ananya and Adithya till the disposal of G.O.P.No.2242 of 2021; - ii) custody of both the children shall be handed over to the respondent-father on every Friday at 4.00 p.m. and he shall return the children to the petitioner-mother at 4.00 p.m. on the ensuing Sunday; and - iii) Giving custody and taking back shall be in the presence of the Chief Ministerial Officer, Family Court, Thrissur. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) Nos.553 & 560 of 2022 ## **APPENDIX OF OP (FC) 553/2022** |**PETITIONER**|**EXHIBITS**| |---|---| |**EXHIBIT P1**|**A TRUE COPY OF G.O.P NO. 2242/2021**| ||**DATED 27/10/2021 OF THE FAMILY COURT,**| ||**THRISSUR**| |**EXHIBIT P2**|**A TRUE COPY OF THE OBJECTION DATED**| ||**8/12/2021 IN GOP 2242/2021 OF THE**| ||**FAMILY COURT, THRISSUR**| |**EXHIBIT P3**|**A TRUE COPY OF THE IA 10/2022 IN GOP**| ||**2242/2021 DATED 23/8/2022 OF THE**| ||**FAMILY COURT, THRISSUR**| |**EXHIBIT P4**|**A TRUE COPY OF THE OBJECTION DATED**| ||**30/8/2022 IN IA 10/2022 IN GOP**| ||**2242/2021 OF THE FAMILY COURT,**| ||**THRISSUR**| |**EXHIBIT P5**|**CERTIFIED COPY OF THE ORDER PASSED IA**| ||**NO. 10/2022 IN GOP 2242/2021 DATED**| ||**3/9/2022 OF THE FAMILY COURT, THRISSUR**| 13 O.P.(FC) Nos.553 & 560 of 2022 ## **APPENDIX OF OP (FC) 560/2022** **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF G.O.P NO. 2242/2021 DATED 27/10/2021 OF THE FAMILY COURT, THRISSUR** **EXHIBIT P2 A TRUE COPY OF THE OBJECTION DATED 8/12/2021 IN GOP 2242/2021 OF THE FAMILY COURT, THRISSUR** **EXHIBIT P3 A TRUE COPY OF IA NO. 09/2022 IN GOP NO. 2242/2021 DATED 19/7/2022** **EXHIBIT P4 A TRUE COPY OF THE OBJECTION DATED 23/8/2022 IN IA NO. 09/2022 IN GOP NO. 2242/2021 OF THE FAMILY COURT, THRISSUR** **EXHIBIT P5 CERTIFIED COPY OF THE ORDER PASSED IA NO. 09/2022 GOP 2242/2021 DATED 3/9/2022 OF THE FAMILY COURT, THRISSUR**