Remsi A. v. Muneer M

# **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 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 OP (FC) NO. 34 OF 2023** **AGAINST THE ORDER DATED 04.11.2022 IN I.A.NO.1 OF 2020 IN O.P. (G&W)NO.647 OF 2020 OF FAMILY COURT, CHAVARA** **PETITIONER:** **REMSI.A. AGED 26 YEARS D/O ABDHUL KHADER, MADATHIL KIZHAKKATHIL, THRIKKUNNAPPUZHA SOUTH MURI, SOORANAD SOUTH VILLAGE, KUNNATHOOR THALUK, KOLLAM DISTRICT., PIN - 690522 BY ADV P.V.DILEEP** **RESPONDENT:** **MUNEER. M AGED 35 YEARS S/O MAJEED, MUNEER BHAVANAM, INCHAKKAD MURI, KAKKAKUNNU.P.O, SOORANAD SOUTH VILLAGE, KUNNATHOOR THALUK, KOLLAM DISTRICT., PIN - 690522 BY ADV N.UNNIKRISHNAN** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC)No.34 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent-mother in O.P.(G&W)No.647 of 2020 on the file of the Family Court, Chavara, which is one filed by the respondent herein-father, seeking permanent custody of the minor child by name, Mohammed Salwan, aged 8 years. In that original petition, the respondent-father filed I.A.No.1 of 2020 (Ext.P1) seeking interim custody of the minor child. The petitionermother filed objection (Ext.P2) in that interlocutory application on 01.11.2022. The Family Court by the order dated 04.11.2022 (Ext.P3) allowed I.A.No.1 of 2020 in O.P.(G&W)No.647 of 2020. The operative portion of that order reads thus; “Therefore, the petition is allowed. Petitioner is given interim custody of the ward on all second and forth Saturdays on all months from 9 a.m till 3 p.m on the succeeding Sundays. Apart from that petitioner is given interim custody of the ward for first 3 days in the Onam and Christmas holidays and also first 10 days of the annual vacation. Exchange of the ward shall be made before the court officer of this court. This interim custody arrangement shall be continued till the disposal of the original petition. No costs.” Feeling aggrieved by Ext.P3 order, the petitioner-mother is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of 3 ## O.P.(FC)No.34 of 2023 India, seeking an order to set aside Ext.P3 order dated 04.11.2022 and to direct the Family Court to consider Ext.P2 objection and pass fresh orders after hearing the petitioner. 2. On 19.01.2023, when this original petition came up for admission, this Court issued notice to the respondent by speed post, returnable within two weeks. 3. On 06.02.2023, when this original petition came up for consideration, the learned counsel on both sides sought time to get instructions as to whether the Family Court had interacted with the minor child before granting overnight custody of the minor child to the respondent herein-father. 4. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 5. The learned counsel on both sides would submit that, on 04.11.2022, before granting overnight custody of the minor child to the respondent-father, the Family Court has not interacted with the minor child. 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, 4 ## O.P.(FC)No.34 of 2023 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 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 5 ## O.P.(FC)No.34 of 2023 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. 8. 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 6 O.P.(FC)No.34 of 2023 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. 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. 9. Though in Ext.P3 order the Family Court has referred to the decision of the Apex Court in **Yashita Sahu [(2020) 3 SCC 67]** , before granting overnight custody of the minor child to the respondent-father, the Family Court has not interacted with the child. In such circumstances, we deem it appropriate to set aside Ext.P3 order, with a direction to the Family Court to reconsider the matter, after interacting with the minor child. In the result, Ext.P3 order dated 04.11.2022 in I.A.No.1 of 2020 in O.P.(G&W)No.647 of 2020 is set aside for the aforesaid reason, 7 O.P.(FC)No.34 of 2023 leaving open the legal and factual contentions raised by both sides, and the Family Court is directed to pass fresh orders in that interlocutory application, after interacting with the minor child, taking note of the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Till such time, the respondent-father will be entitled to visitation right, without overnight custody, on the days mentioned in Ext.P3 order. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** 8 ## O.P.(FC)No.34 of 2023 ## **APPENDIX** **PETITIONER EXHIBITS Exhibit1** **A TRUE COPY OF THE O.P. (G&W) 647 / 2020 ON THE FILE OF THE FAMILY COURT, CHAVARA.** **Exhibit-P2 A TRUE COPY OF THE OBJECTION DATED 01.11.2022 IN O.P. (G&W) 647 / 2020 ON THE FILE OF THE FAMILY COURT; CHAVARA. Exhibit-P3 A TRUE COPY OF THE INTERIM ORDER DATED 04.11.2022 IN I.A.NO.1/2020 IN O.P. (G&W) 647 / 2020 ON THE FILE OF THE FAMILY COURT, CHAVARA.**