RadhaKrishnan Nair v. Manjula P.M.

## **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 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 MAT.APPEAL NO. 738 OF 2018 AGAINST THE ORDER DATED 25.05.2018 IN OP.NO.37 OF 2017 ON THE FILE OF THE FAMILY COURT,KOZHIKODE APPELLANT/PETITIONER:** **RADHAKRISHNAN NAIR AGED 46 YEARS, S/O. PARAMESHWARAN NAIR,PUTHENVEEDU HOUSE,SREEKANDAMANGALAM, MUTTATHIPARAMBU, CHERTHALA, ALAPPUZHA.** **BY ADVS. SRI.S.RENJITH SRI.K.P.JAYACHANDRAN SRI.S.VIJAYAN (THURAVOOR)** ## **RESPONDENT/RESPONDENT:** **SMT. MANJULA P.M. AGED 38 YEARS, D/O. GOPALAKRISHNAN, KRISHNAKRIPA HOUSE, VENGERI P.O, KOZHIKODE, KERALA - 678 010.** **BY ADV SRI.P.V.ANOOP** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 04.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 ## **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.** **-----------------------------------------------------------** **Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 ----------------------------------------------------------Dated this the 4[th] day of April, 2023** ## **JUDGMENT/ORDER** ## P.G. Ajithkumar, J. The appellant is the petitioner in O.P.No.37 of 2017 on the file of the Family Court, Kozhikode. He filed the said original petition seeking a decree granting him permanent custody of his son, Maheshwar, who was born on 15.04.2011. The respondent is the mother. The Family Court dismissed that original petition. However, the appellant was allowed right of visitation and interaction with the child on every third Saturday between 11.00 a.m. and 4.50 p.m. The appellant, challenging the said judgment and decree dated 25.05.2018, filed this appeal under Section 19(1) of the Family Courts Act, 1984. 2. There was a delay of 26 days in filing the appeal. As per the order dated 08.10.2018 in C.M.Appl.No.2576 of 2018, the delay was condoned and the appeal was admitted. 3 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 3. During the pendency of this appeal, various orders regarding interim custody of the child were passed by this Court. On several occasions, overnight custody of the child was given to the appellant. Lastly, custody of the child was given to the appellant from 07.09.2022 to 11.09.2022. Thus the appellant was having interaction with the child on frequent intervals. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. Today (04.04.2023), when this matter is taken up for hearing, the learned counsel appearing for the respondent, on instructions, would submit that the respondent has no serious objection in giving interim custody of the child to the appellant for a period of one month during the vacation. 6. The Family Court at the trial in O.P.No.37 of 2017 recorded the oral testimonies of the appellant and the respondent. They are PW1 and RW1 respectively. Exts.A1, A2 and B1 to B3 were received in evidence. The Family Court 4 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 considered the said evidence in detail. At that time, the child was aged only 4½ years. The apprehensions of the respondent regarding the safety and security of the child were mainly counted in deciding the custody of the child. Now, the child is grown up. There is no need for such concern regarding the safety or security of the child as in the case of a child of tender age. As pointed out above, during various occasions, after filing this appeal, custody of the child was given to the respondent for days together. Therefore, it can certainly be inferred that the child has no much inhibition in residing along with the appellant. There need not be any apprehension regarding safety and security of the child, while in the custody of the appellant also. 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 5 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 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 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 6 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 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 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. 7 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 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 to have 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. (underline supplied) 10. In **Rohith Thammana Gowda v. State of Karnataka & others [AIR 2022 SC 3511]** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an enquiry regarding custody of 8 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 children. The Apex Court explained as to how far desire of the child has to be given importance. It was held as follows: “8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question ‘what is the wish/desire of the child’ is different and distinct from the question ‘what would be in the best interest of ’ the child . Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, ‘what would be the best interest of the child concerned’. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and 9 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 deal with all the contentions and allegations in their respective pleadings and affidavits.” (underline supplied) 11. In the light of the law laid down in the aforesaid decisions, the factors influencing the welfare of the child are to be considered essentially while ordering the custody. Rival contentions of the respective parties need not be deliberated upon in great detail. From the facts and circumstances of the case mentioned hereinbefore, we are of the view that the impugned decree is liable to be modified with respect to the periodical custody to be given to the appellant, while confirming the order regarding permanent custody. 12. Accordingly, this appeal is disposed of as follows: - i) The respondent shall have permanent custody of the child; - ii) The appellant shall be given periodical custody, namely, half of the holidays during Onam and Christmas and midsummer vacation; - iii) The appellant shall also be given custody of the child on every second Saturday and Sunday. The custody shall be given at 10.00 a.m. and returned at 4.00 p.m. of the first and last day respectively of each spell; - iv) Such custody shall be given and taken back from the 10 Mat.Appeal No.738 of 2018 and I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 premises of the Family Court, Kozhikode; and - v) The appellant/respondent shall be allowed to make audio/video call between 7.00 and 7.30 p.m. on every alternate day while the child is in the custody of the other parent. I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018 During this vacation, custody of the child shall be given to the petitioner/appellant from 08.04.2023 till 07.05.2023. I.A.No.1 of 2023 is ordered accordingly. ## **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr