Ratheesh C.C v Vijaya V F

# **`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 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 ``` ``` OP (FC) NO.525OF 2022 ``` ``` AGAINST THE ORDER 29.08.2022 IN I.A.NO.2 OF 2022 IN ``` ``` G.O.P.NO.116 OF 2022 OF FAMILY COURT,THRISSUR ``` ``` PETITIONER: ``` ``` RATHEESH C.C AGED 41 YEARS S/O CHANDRANMOHAN, CHEKKITHARA HOUSE, KARAKKUNNU DESOM. THRIKKALANGOD POST. MANJERI. MALAPPURAM DISTRICT. PIN CODE ., PIN - 670123 BY ADVS. K.M.MUHAMMED HUSSAIN T.K.VIPINDAS K.V.SREE VINAYAKAN ``` ``` RESPONDENT: ``` ``` VIJAYA.V F. AGED 37 YEARS D/O FALGUNAN. KONTHIPARAMBUVELI HOUSE, MARARIKULAM DESAM. ALAPPUZHA DISTRICT. PRESENTLY RESIDING AT CHEKKITHARA HOUSE, ENGANDIYUR P O, CHAVAKKAD TALUK. THRISSUR DISTRICT. PIN CODE, PIN - 680615 BY ADVS. V.V.JOY LEKSHMI P. NAIR(K/001011/2017) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(FC)No.525 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent-father in G.O.P.No.116 of 2022 on the file of the Family Court, Thrissur, which is one filed by the respondent herein-mother, seeking custody of the minor children namely, Sayangadami aged 13 years and Sairam aged 11 years. In that original petition, the respondent filed I.A.No.2 of 2022, an application for interim custody of the minor children. The petitioner-father filed objection, opposing the relief sought for in that interlocutory application. After considering the rival contentions, the Family Court by Ext.P5 order dated 29.08.2022 allowed that interlocutory application and the petitioner-father was directed to handover interim custody of both minor children to the respondent-mother at 10.00 a.m. on 05.09.2022. As per that order, the father shall be entitled to get custody of both the minor children from 10.00 a.m. on every second Saturday, till 4.00 p.m. on the following Sunday, and also during first five days of Onam and Christmas vacations (except the Onam vacation of 2022) and also during first ten days of April and May in the summer vacations. Feeling aggrieved by the said order of the Family Court, the petitioner-father is before this Court in this 3 O.P.(FC)No.525 of 2022 original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. On 13.09.2022, when this original petition came up for admission, this Court admitted the matter on file and issued notice by special messenger to the respondent. This Court granted an interim stay of operation of Ext.P5 order till 19.09.2022. 3. On 23.12.2022, in I.A.No.2 of 2022, this Court granted an interim order regarding interim custody of the minor children during Christmas vacation of 2022, which reads thus; “As agreed by the learned counsel on both sides, there will be an interim order granting interim custody of the minor children during the Christmas vacation to the petitioner, who shall take custody of the minor children on 25.12.2022 at 11.00 a.m., from the premises of the Family Court, Thrissur. The petitioner shall return the children on 31.12.2022 at 11.00 a.m., at the very same place.” 4. The respondent-mother has filed I.A.No.1 of 2022, seeking an order to vacate the interim order granted on 13.09.2022. 5. Today, when the matter is taken up for consideration, the petitioner-father has filed a counter affidavit in I.A.No.1 of 2022. 4 O.P.(FC)No.525 of 2022 6. Heard the learned counsel for the petitioner-father and also the learned counsel for the respondent-mother. 7. The issue that requires consideration in this original petition is as to whether any interference is warranted on Ext.P5 order of the Family Court dated 29.08.2022 in I.A.No.2 of 2022 in G.O.P.No.116 of 2022, whereby the interim custody of the minor children is granted to the mother, subject to the overnight custody granted to the petitioner-father from 10.00 a.m. on every second Saturday, till 4.00 p.m. on the following Sunday, for five days during Onam and Christmas vacations and the first ten days of April and May, during summer vacations. 8. 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 5 O.P.(FC)No.525 of 2022 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. 9. 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 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 6 O.P.(FC)No.525 of 2022 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. 10. 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. The court cannot accept the submission that, while applying the welfare principle, the rights of the mother or father 7 O.P.(FC)No.525 of 2022 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. 11. A reading of Ext.P5 order dated 29.08.2022 of the Family Court would show that, before granting interim custody of the minor children to the respondent-mother, subject to the overnight custody granted to the petitioner-father on the days specified therein, the Family Court had occasion to interact with the minor children. Considering the facts and circumstances of the case, as borne out from the materials on record, the reasoning of the Family Court in Ext.P5 order cannot be said to be either perverse or patently illegal. It cannot also be said that while passing such an order, the Family Court committed a material irregularity, by ignoring the principle laid down in the decisions referred to supra. 12. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 8 O.P.(FC)No.525 of 2022 ## 13. In **Shalini Shyam Shetty v. Rajendra Shankar** **Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 14. In **Jai Singh v. Municipal Corporation of Delhi** **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established 9 O.P.(FC)No.525 of 2022 principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 15. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 16. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower 10 O.P.(FC)No.525 of 2022 court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 17. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the 11 O.P.(FC)No.525 of 2022 lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 18. Viewed in the light of the law laid down in the decisions referred to supra, no interference is warranted on Ext.P5 order of the Family Court, Thrissur in I.A.No.2 of 2022 in G.O.P.No.116 of 2022, since the reasoning of the said court in that order is neither perverse nor patently illegal, warranting an interference by this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, this original petition fails and the same is accordingly dismissed. Consequently, the interim order dated 13.09.2022 will stand vacated. The petitioner-father shall handover the custody of the minor children to the respondent- mother on 03.04.2023. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** **yd** 12 O.P.(FC)No.525 of 2022 ## **APPENDIX** ||**APPENDIX**| |---|---| |**`PETITIONER`**|**`EXHIBITS`**| |**`Exhibit P1`**|<br>**`TRUE COPY OF THE ORIGINAL PETITION IN`**| ||**`G.O.P NO.116/2022 BEFORE THE FAMILY`**| ||**`COURT, THRISSUR`**| |**`Exhibit P2`**|<br>**`TRUE COPY OF THE I.A.NO.2 OF 2022 IN`**| ||**`G.O.P NO.116/2022 BEFORE THE FAMILY`**| ||**`COURT, THRISSUR`**| |**`Exhibit P3`**|<br>**`THE TRUE COPY OF THE OBJECTION FILED BY`**| ||**`THE PETITIONER TO THE EXHIBIT P2`**| ||**`APPLICATION`**| |**`Exhibit P4`**|<br>**`TRUE COPY OF THE APPLICATION IN G.O.P`**| ||**`NO.437/2019 FILED BY THE RESPONDENT`**| ||**`BEFORE THE FAMILY COURT, THRISSUR`**| |**`Exhibit P5`**|<br>**`TRUE COPY OF ORDER IN I.A.NO 2 OF 2022`**| ||**`IN G.O.P NO.116/2022 DATED 29-08-2022`**| ||**`ON THE FILE OF FAMILY COURT ,THRISSUR`**| |**`EXHIBIT P6`**|<br>**`True copy of the application in MP no.`**| ||**`1111/2020 in MC 274/2019`**| |**`EXHIBIT P7`**|<br>**`True copy of the Order in MP no.`**| ||**`1111/2020 in MC 274/2019 dated`**| ||**`7.12.2021`**| |**`RESPONDENT`**|**`EXHIBITS`**| |**`Exhibit R1`**|<br>**`A TRUE COPY OF THE HAND WRITTEN`**| ||**`ACKNOWLEDGMENT OF THE PETITIONER'S`**| ||**`FATHER DATED 21.08.2020`**|