Rashin Rajan v. Biju K. Mathew

## **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 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 O.P.(FC) NO. 161 OF 2023** **AGAINST THE ORDER DATED 07.03.2023 IN E.P.NO.69 OF 2022 IN G.O.P.NO.2034 OF 2017 ON THE FILE OF THE FAMILY COURT, THRISSUR** ## **PETITIONER:** ## **RASHIN RAJAN** **AGED 36 YEARS, DAUGHTER OF RAJAN, KANNANAICKAL HOUSE, MANGADU DESOM AND VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, KERALA, PIN – 680542.** **BY ADVS. SHIBIN K.F. SEBY JOSEPH** ## **RESPONDENT:** **BIJU K. MATHEW** **AGED 40 YEARS SON OF PAPPACHAN, KANNAMKARA HOUSE, 38/16, ELATHUR VILLAGE AND DESOM, KOZHANJERI TALUK, PATHANAMTHITTA DISTRICT, KERALA STATE, PIN – 689643.** **BY ADV HARIDAS P** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 03.04.2023, THE COURT ON 12.04.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.161 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. This Original Petition under Article 227 of the Constitution of India is one filed by the respondent in G.O.P.No.2034 of 2017 on the file of the Family Court, Thrissur. She seeks to set aside Ext.P2 order dated 07.03.2023 of the Family Court in E.P.No.69 of 2022 in G.O.P.No.2034 of 2017, to stay operation of Ext.P1 order dated 25.02.20198 in G.O.P.No.2034 of 2017 and to direct the Family Court to dispose of I.A.No.2 of 2022 filed by the petitioner in G.O.P.No.2034 of 2017, within a time frame fixed by this Court. 2. On 31.03.2023 notice on admission was ordered to be served on the respondent through Special Messenger. Both parties along with the children were directed to be present in person before the court at 10.15 a.m. on 03.04.2023. The petitioner was permitted to retain custody of minor children for the purpose of producing them before us on 03.04.2023. In terms of the said order, both parties 3 O.P.(FC) No.161 of 2023 were appeared in person before this Court on 03.04.2023. The children, Amatha, aged 12 years and Amaya, aged 10 years were also produced before us. We have interacted with the children and the parents. They were thereafter directed to appear before the Family Counselling Centre under the Kerala High Court Legal Services Committee at 11.30 a.m. on 03.04.2023 for counselling. They were instructed to appear before us again at 3.30 p.m. After counselling both parents and the children appeared before us at 3.30 p.m. We have interacted with them once again. We have also perused the report of the Family Counsellor, which was placed on record in sealed cover. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The petitioner is the mother and the respondent is the father. Children are now aged 12 years and 10 years. Both are girls. Since there occurred estrangement in the family relationship between the petitioner and the respondent, 4 O.P.(FC) No.161 of 2023 whose marriage was solemnised on 01.02.2010, there arose a few litigations. O.P.No.106 of 2017 was filed by the petitioner for getting back gold ornaments from the respondent. The respondent filed G.O.P.No.2034 of 2017 claiming permanent custody of the children. M.C.No.474 of 2016 was filed by the petitioner claiming maintenance for herself and the children. Those cases were tried jointly by the Family Court and disposed of as per a common order dated 25.02.2019. 5. The decree in O.P.No.2034 of 2017 reads as follows,- “1. The permanent custody of the minor children shall continue with the respondent. 2. The petitioner is entitled to get visitation right to visit the children between 10 a.m. to 1 p.m. on every Saturdays in the premises of Family Court, Thrissur. 3. The respondent also entitled to get custody of the children during the first 5 days each of Onam and Christmas holidays and first 10 days in the month of April and May (during summer vacation). 4. The exchange of the children shall be in the premises of the Family Court, Thrissur.” 5 O.P.(FC) No.161 of 2023 6. The respondent filed E.P.No.69 of 2022 alleging that the petitioner did not comply with the directions contained in the decree in G.O.P.No.2034 of 2017. Ext.P3 is a copy of the execution petition. The petitioner filed a detailed objection, a copy of which is Ext.P4. The essential contention was that the respondent did not obtain custody of the child in terms of the decree ever before and that the maintenance amounts ordered as per the order in M.C.No.474 of 2016 was not paid to the petitioner. The Family Court, Thrissur, after considering the said contentions directed the petitioner as per Ext.P2 order to hand over custody of the children on 01.04.2023 in terms of the stipulations in the decree. 7. The petitioner has filed I.A.No.2 of 2022 in G.O.P.No.2034 of 2017 on 03.09.2022. She seeks in the said interlocutory application to modify the direction contained in Ext.P1 decree, which directs handing over custody of the children to the respondent for overnight custody. That petition is pending consideration of the Family Court. 6 O.P.(FC) No.161 of 2023 8. The learned counsel appearing for the petitioner would submit that there are enough reasons not to send the children for overnight custody along with the respondent and therefore, handing over the custody before taking a decision in I.A.No.2 of 2022 would be prejudicial to the petitioner. It is stated in the affidavit filed in support of I.A.No.2 of 2022 that the respondent used to consume alcohol and come home in an inebriated condition. Fearing him, his parents are also not residing along with him. When the respondent alone is at his residence, stay of girl children with him in that house would be quite detrimental to the safety and security of the children. 9. The learned counsel appearing for the respondent, on the other hand, would submit that the respondent has been residing along with his parents and the only reason refusing to send children along with him is that the petitioner wants to distance the children from him. The respondent was involved in a road accident and sustained serious injuries. He was bedridden for quite a long period and in that situation, the petitioner left the matrimonial home along with the 7 O.P.(FC) No.161 of 2023 children. Thus the learned counsel would submit that the apprehension of the petitioner regarding safety and security of the children is totally misplaced and unsupported by any tenable reason. 10. During the interaction, the children expressed their desire not to go along with the father. The children are grown up and therefore their desire has to be taken into account. At the same time, their wish or desire shall not be sole guiding factor while deciding their custody. 11. 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 children. The Apex Court explained as to how far the desire of a 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 8 O.P.(FC) No.161 of 2023 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 deal with all the contentions and allegations in their respective pleadings and affidavits.” (underline supplied) 12. It is seen from the materials on record that the children have not been in the company of the respondentfather during the recent past. Since he sustained injury in an accident and laid up, his failure to get custody of the children in terms of the decree in O.P.No.2034 of 2017 cannot be a purposeful avoidance. It appears that during the difficult times 9 O.P.(FC) No.161 of 2023 of the respondent, the petitioner did not bother to take care of him. On 03.04.2023, the mother of the respondent also appeared before us. From the interaction with the parties, we find that his mother is also along with the respondent. 13. Since there has been a long gap in having the company of the children with the father, there would have developed an emotional gap between them. There is nothing on record to show that the respondent is alcoholic or has created any act undesirable as a father. In the absence of any proven misconduct making him unworthy of having custody of the children, execution of the decree in O.P.No.2034 of 2017, which in his favour, cannot be avoided. Of course, I.A.No.2 of 2022 filed by the petitioner is pending consideration of the Family Court. No doubt, in that application, the Family Court has to take an appropriate decision. That is not a sufficient reason to ignore the decree in O.P.No.2034 of 2017 altogether. However, in the light of the long gap between the date of decree and the execution petition, we are of the view that there can be a modification to the period of custody 10 O.P.(FC) No.161 of 2023 allowed to the respondent, which in our view is absolutely necessary in order to ensure the welfare of the children. It may be noted that the respondent is residing at Pathanamthitta and the children are at Thrissur along with the petitioner. Taking all such aspects into account, instead of giving custody of the children to the respondent for a continuous period of 10 days, which is the direction in the decree, custody for a lesser period can be given to the respondent, for the time being. 14. Accordingly, we modify Ext.P2 order, as an adhoc arrangement only, during the pendency of I.A.No.2 of 2022. Custody of the children shall be given to the respondent for five days, from 11.00 a.m. on 24.04.2023 till 4.00 p.m. on 28.04.2023. The respondent along with his mother shall appear before the Family Court, Thrissur and get custody of the children. The respondent and his mother shall bring back the children to Family Court, Thrissur at 4.00 p.m. on 28.04.2023 and return to the petitioner. Handing over custody of the children to the respondent during any subsequent 11 O.P.(FC) No.161 of 2023 period shall be subject to the decision in I.A.No.2 of 2022 in G.O.P.No.2034 of 2017. The Family Court shall endeavour to dispose of I.A.No.2 of 2022 within a period of two months from the date of production of a certified copy of this judgment. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) No.161 of 2023 ## **APPENDIX OF OP (FC) 161/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **A TRUE COPY OF THE ORDER DATED 25-022019 IN G.O.P NO. 2034/2017, O.P. NO. 106/2017 AND M.C NO. 474/2016 ON THE FILES OF THE FAMILY COURT, THRISSUR** **EXHIBIT P2** **A TRUE COPY OF THE ORDER, DATED 07-032023, IN E.P. NO. 69/2022 IN G.O.P. NO. 2034/2017** **EXHIBIT P3** - **A TRUE COPY OF THE E.P. NO. 69/2022 IN G.O.P NO. 2034/2017 FILED BY THE RESPONDENT HEREIN BEFORE THE FAMILY COURT, THRISSUR DATED 20-08-2022** **EXHIBIT P4** - **A TRUE COPY OF THE OBJECTION, DATED 02-09-2022 FILED BY THE 1ST PETITIONER TO THE EXHIBIT P3 APPLICATION.** - **EXHIBIT P5** - **A TRUE COPY OF IA NO. 2/2022 IN G.O.P NO. 2034/2017 DATED 03-09-2022** - **EXHIBIT P6** - **A TRUE COPY OF THE M.P. NO.663/2019 IN M.C. NO. 474/2016 DATED 22-04-2019** **EXHIBIT P7** **A TRUE COPY OF THE M.P. NO.650/2020 IN M.C. NO. 474/2016 DATED 15-06-2020**