Pramod K G v Malini S and V Shanmughan Asari and A Nirmala and Shyam S

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** **O.P.(FC) NO. 726 OF 2022 SPEEDY DISPOSAL OF I.A.NO.4 OF 2022 IN O.P.NO.765 OF 2017 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM** ## **PETITIONER:** **PRAMOD K G AGED 46 YEARS S/O LATE K P GOPALAN, 16/414, KAVERI, CHERANALLOOR, CHERANALLOOR VILLAGE, KANAYANNOOR TALUK, KOCHI, PIN – 682034.** **BY ADVS. PREEJA V.P. GEORGE BRISTON V.P.PRASANTH ANUJA S. NAIR** ## **RESPONDENT/S:** **1 MALINI S., AGED 41 YEARS, D/O V SHANMUGHAM ASARI, T C 7/1248, GAYATRI, KOOTAMVILA ROAD, VATTIYOOR KAVU VILLAGE, VATTIYOOR KAVU P O, TRIVANDRUM TALUK, TRIVANDRUM, PIN – 695012.** ## **2 V SHANMUGHAN ASARI,** **AGED 80 YEARS,** **S/O V ASARI, T C 7/1248, GAYATRI, KOOTAMVILA ROAD, VATTIYOOR KAVU VILLAGE, VATTIYOOR KAVU PO, TRIVANDRUM TALUK, TRIVANDRUM, PIN – 695012.** 2 ## O.P.(FC) No.726 of 2022 - **3 A NIRMALA** **AGED 75 YEARS** **W/O. V SHANMUGHAN ASARI, T C 7/1248, GAYATRI, KOOTAMVILA ROAD, VATTIYOOR KAVU VILLAGE, VATTIYOOR KAVU P O, TRIVANDRUM TALUK, TRIVANDRUM, PIN – 695012.** **4 SHYAM S S/O V SHANMGHAM ASARI, T C 7/1248, GAYATRI, KOOTAMVILA ROAD, VATTIYOOR KAVU VILLAGE, VATTIYOOR KAVU P O, TRIVANDRUM TALUK, TRIVANDRUM, PIN - 695012. SRI SYAMNATH J.G.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 ## O.P.(FC) No.726 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioner in O.P.(G&W) No.765 of 2017 before the Family Court, Thiruvananthapuram, has filed this Original Petition under Article 227 of the Constitution of India. He seeks to issue a direction to the Family Court to consider I.A.No.4 of 2022, which he has filed in the O.P. He seeks a further direction to the respondents to handover the custody of the child, William, aged 10 years to him in terms of Ext.P3 settlement agreement. 2. On 27.12.2022 when this matter came up for admission, notice was directed to be served on the respondents through Special Messenger. On 30.12.2022, the respondents entered appearance. Both the parties were directed to be present before this Court along with the child on 05.01.2023. Also, it was ascertained over telephone from the Family Court, Thiruvananthapuram, as to when could I.A.No.4 of 2022 be disposed of. The Judge, Family Court, has informed that I.A.No.4 of 2022 can be disposed on or before 17.01.2023. 4 O.P.(FC) No.726 of 2022 3. Today, in terms of the said order, both parties along with the child personally appeared before this Court. We have interacted with both the petitioner, the 1st respondent and the child. The child took the stand that he did not want to go along with the father. He is now studying in Std.V. He expressed a strong desire, even after having interacted with the father for more than half an hour inside the Court hall, that he did not intend to stay along with the father. 4. Ext.P3 is a copy of the agreement entered into between the petitioner and the 1st respondent with respect to the interim custody of the child. Going by the terms of the agreement, the petitioner has right to have interim custody of the child on every second Saturday or Sunday; besides, a few days during the Onam, Pooja, Christmas and summer vacations. The grievance of the petitioner is that the 1st respondent does not honour the said terms. Therefore, he was constrained to file I.A.No.4 of 2022, a copy of which is Ext.P4, seeking to issue direction to the respondents to comply with the stipulations in Ext.P3. 5 ## O.P.(FC) No.726 of 2022 5. In **Rosy Jacob v. Jacob A. Chakramakkal [1973** **(1) SCC 840]** the Apex Court held that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court if the welfare of the wards demands variation. 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 6 ## O.P.(FC) No.726 of 2022 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 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.726 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. The agreement entered into between the parents in respect of the custody of the child does not interdict the powers of the court to consider as to what is the best interest of the child. As held by the Apex Court, while deciding the custody of a child, the essential consideration shall be the 8 O.P.(FC) No.726 of 2022 welfare of the child. Hence, despite Ext.P3 settlement agreement, it is necessary for the court to ascertain the desire of the child, especially when the child is now 10 years of age and can realise what are his needs and requirements. 9. In such circumstances, we deem it appropriate, instead of deciding the matter involved in I.A.No.4 of 2022, direct the Family Court, Thiruvananthapuram, to take a decision in the matter expeditiously. Considering the submission of the Judge, Family Court regarding the time required to dispose of the matter, we direct the Family Court, Thiruvananthapuram to dispose of I.A.No.4 of 2022 in O.P.765 of 2017 within a period of two weeks from the date of production of a certified copy of this judgment. This Original Petition is disposed of accordingly. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(FC) No.726 of 2022 ## **APPENDIX OF OP (FC) 726/2022** **PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE OP ( GW) 765 OF 2017 FILED BEFORE THE FAMILY COURT THIRUVANANTHAPURAM DATED 23.06.2016 BY THE PETITIONER EXHIBIT P2 TRUE COPY OF THE IA NO: 3 OF 2021 IN MC NO: 306 OF 2016 DATED 08.08.2021 BEFORE THE FAMILY COURT , THIRUVANANTHAPURAM BY THE PETITIONER EXHIBIT P3 TRUE COPY OF THE SETTLEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT DATED 26.02.2022 BEFORE THE MEDIATION CENTRE, THIRUVANANTHAPURAM EXHIBIT P4 TRUE COPY OF THE IA NO: 3 OF 2022 AND IA NO: 4 OF 2022 FILED DATED 23.12.2022 BEFORE THE FAMILY COURT THIRUVANANTHAPURAM FOR POSTING THE OP AND FOR PRODUCTION OF MINOR CHILD**