Ratheesh v. Bhagyam

# **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 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 MAT.APPEAL NO. 625 OF 2022** **AGAINST THE JUDGMENT DATED 28.06.2022 IN O.P.NO.180 OF 2018 ON THE FILES OF THE FAMILY COURT, PALAKKAD** **APPELLANT/PETITIONER:** **RATHEESH** **AGED 42 YEARS S/O KUNJAN, RESIDING AT BHAGAVATHI NIVAS, NARIYAMPARAMBU, KATTUSSERY AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT - 678 541.** **BY ADVS. RAJESH SIVARAMANKUTTY K.V.ANTONY ARUL MURALIDHARAN** ## **RESPONDENT/RESPONDENT:** ## **BHAGYAM** **AGED 69 YEARS, W/O. BALAN, RESIDING AT ERATTAKULAM HOUSE, MELARCODE, ALATHUR TALUK, PALAKKAD DISTRICT - 678 703.** **BY ADV RESMI NANDANAN** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.625 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner in O.P.No.180 of 2018 on the file of the Family Court, Palakkad is the appellant. He has filed that original petition claiming permanent custody of his daughter, Sree Lakshmi R., aged 7 years. The respondent is the maternal grandmother. Mother of the child is no more. The Family Court disallowed the claim of the appellant for permanent custody. He is, however, allowed to interact with the child on every third Saturday of the month, between 2.00 p.m. and 4.00 p.m. at the premises of the Family Court. The appellant challenges the said judgment in this appeal filed under Section 19(1) of the Family Courts Act, 1984. 2. There was a delay of 24 days in filing the appeal. As per the order dated 16.11.2022 in C.M.Appl.No.1 of 2022 the delay was condoned. Appeal was admitted on that day and fresh notice was directed to be served on the respondent. She entered appearance through counsel. 3 Mat.Appeal No.625 of 2022 3. Considering the submissions of the learned counsel appearing for the appellant that the respondent has no means of livelihood and she used to even take the child for begging, we called for a report from the District Legal Services Authority, Palakkad regarding the circumstances in which the minor is now living and also ability of the respondent to take care of the child. The Secretary, District Legal Services Authority, Palakkad accordingly submitted a report dated 09.02.2023. A Para Legal Volunteer was deputed for collecting details and later the Secretary, District Legal Services Authority made a visit to the school where the child is studying and also the residence where she is staying. On the basis of the details so collected, the Secretary has submitted a report to this Court. 4. The report says that the child is now studying in A.L.P. School, Kinavalloor, Parali in Palakkad and residing at the house of Smt.Sumangala, sister of the child’s deceased mother. Smt.Sumangala has two children. Her daughter is also studying in the same school. Her house is near to the 4 Mat.Appeal No.625 of 2022 school. The report further says that the respondent with whom the child was earlier staying fell ill and therefore the child was taken to the house of Smt.Sumangala and joined her in a new school. As per the report, the child is happily staying at the house of Smt.Sumangala and she as well as her husband Sri.Manoj are taking care of the affairs of the child. It is also reported that Smt.Bhagyam is now healthy and she is also very much interested in the affairs of the child. Pendency of S.C.No.239 of 2018 against the appellant before the Principal Assistant Sessions Court, Palakkad, pertaining to the suicide of Smt.Sumathi, wife of the appellant is also made mention of in the report. 5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 6. Mother of the child is no more. Father is the appellant. When the mother is no more, the normal course is to entrust custody of the child to the father. It is in evidence that after the death of the mother, the child has been with the 5 Mat.Appeal No.625 of 2022 respondent, who is the maternal grandmother. The claim of the father for permanent custody of the child was not accepted by the Family Court for the main reason that there is accusation against the appellant that on account of his persuasion and abetment, Smt.Sumathi, his wife committed suicide. S.C.No.239 of 2018 for the offence under Section 306 of Indian Penal Code, 1860 is pending trial against him before the Principal Assistant Sessions Court, Palakkad. It is evident that ever after the death of the mother, the child has been with the respondent or the sister of the deceased; thereby the child has no close acquaintance with the appellant. After taking into account all such aspects, the appellant was denied permanent custody of the child. 7. The learned counsel appearing for the appellant would submit that going by the admission of the respondent, RW1, the child was used to be taken for soliciting alms and therefore she is disentitled to be in custody of the child. The admission of RW1 is not that she along with the child used to go for begging. She only stated that if somebody extends 6 Mat.Appeal No.625 of 2022 help, she would receive it. As pointed out above, the Secretary, District Legal Services Authority, Palakkad has reported that the child is now residing along with her mother’s sister Smt.Sumangala. A.L.P.School, where the child is now studying, is not far away from that house. Daughter of Smt.Sumangala is also studying in the same school. Smt.Sumangala and her husband Manoj are earning members. She is working in a textile shop and Sri.Manoj is an autorickshaw driver. The respondent is also healthy and hale now. Taking all such aspects into account, we find no reason to interfere with the finding entered into by the Family Court, by which permanent custody of the child was denied to the appellant. 8. The appellant was allowed to interact with the child on all third Saturdays from 2.00 p.m. to 4.00 p.m. in the premises of the Family Court. Since the mother is no more, it is necessary that the child does have an emotional bondage with the father. It is a fact that he faces charge of abetting his wife to commit suicide. Despite that, the father should be 7 Mat.Appeal No.625 of 2022 allowed to interact with the child lest, the child will be denied paternal care and love forever. ## 9. In **Rosy Jacob v. Jacob A. Chakramakkal [1973** **(1) SCC 840]** the Apex Court held that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. ## 10. 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 8 Mat.Appeal No.625 of 2022 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. 11. 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 9 Mat.Appeal No.625 of 2022 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. 10 Mat.Appeal No.625 of 2022 12. In the light of the law laid in the aforesaid decisions, we are of the view that the father shall be allowed to have interaction with the child, although he cannot be given permanent custody. Accordingly, while confirming the judgment of the Family Court dated 28.06.2022, the direction regarding interaction is modified to the effect that the appellant shall be allowed to interact with the child, Sree Lakhmi R. on every alternate Saturday from 2.00 p.m. to 4.00 p.m. at the premises of the Family Court, Palakkad. All other directions in the impugned judgment will continue. If any of the parties desires to have modification to the said arrangement regarding visitation, he/she can approach the Family Court, Palakkad after six months. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr