Renjana Mathew v. Tony Cherian

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023/5TH PHALGUNA, 1944** **OP (FC) NO.565 OF 2022 AGAINST EXT.P8 ORDER: ORDER DATED 08.08.2022 IN I.A.NO.1 OF 2021 IN O.P.NO.1184 OF 2021 ON THE FILES OF THE COURT OF THE JUDGE FAMILY COURT KOTTAYAM AT ETTUMANOOR** ## **PETITIONER/RESPONDENT/RESPONDENT:** **RENJANA MATHEW AGED 29 YEARS DAUGHTER OF SRI. C.M. MATHEW CHAKKITTAMURIYIL HOUSE, INDUSTRIAL NAGAR P.O., CHETHIPUZHA VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, KERALA, PIN - 686106** **BY ADVS. LUKE J CHIRAYIL M.G.SREEJITH** ## **RESPONDENT/PETITIONER/PETITIONER:** **TONY CHERIAN AGED 32 YEARS MUKKATTU NELLUVELIL HOUSE, INDUSTRIAL NAGAR P.O., CHETHIPUZHA VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, KERALA, PIN - 686106** **BY ADVS. JOMY GEORGE GEORGE R.PADMARAJ(K/191/1989) M.J.BENNY(K/1145/2003) CHITRA N. DAS(K/001228/2018) RISHAB S.(K/000757/2019) FATHIMA AFEEDA P.(K/001993/2022) R.AJITH KUMAR [V.K.EDOM](K/000629/2016)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.565 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. O.P(G&W) No.1184 of 2021 was filed before the Family Court, Kottayam at Ettumanoor by the respondent seeking custody of his minor son, Heidan Sach Thomas born on 21.06.2018. He has filed I.A No.1 of 2021 for getting interim custody of the child. That interlocutory application was allowed by the Family Court as per the order dated 08.08.2022 thereby the respondent was allowed to interact with the child every alternate day between 4.00 p.m and 6.00 p.m through video call and interim custody of the child during vacation. Ext.P8 is the said order. The petitioner, aggrieved of that order has filed this original petition under Article 227 of the Constitution of India. 2. On 29.09.2022, notice was directed to be served on the respondent and further proceedings in O.P.No.1184 of 2021 on the file of the Family Court, Kottayam at Ettumanoor pursuant to Ext.P8 order was stayed for a period of one month. Respondent entered appearance and filed a counter 3 O.P.(FC) No.565 of 2022 affidavit producing therewith Ext.R1(a). 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. Marriage between the petitioner and the respondent was solemnised on 22.05.2017. Their marital relationship was strained resulting in filing O.P.No.1166 of 2021 by the respondent seeking dissolution of marriage. The petitioner filed O.P.No.419 of 2022 for a decree of return of gold ornaments and realisation of money. I.A No.1 of 2021 filed by the respondent in O.P.(G&W) No.1184 of 2021 was resisted by the petitioner. The Family Court however allowed the respondent to have interim custody of the child during vacation and right of interaction through video call every alternate day. The petitioner would contend that the character of the respondent is such that he cannot be given custody of the child. Petitioner has produced Exts.P4, P5 and P7 which are copies of First Information Reports to show that the respondent was involved in serious crimes. In that context 4 O.P.(FC) No.565 of 2022 she contend that to fortify her contention that the respondent is disentitled to claim custody of the child. 5. The learned counsel appearing for the respondent would submit that those crimes particularly, the one pertaining to Ext.P4, were manipulated ones and the respondent did not commit any such offence. The learned counsel appearing for the respondent also pointed out that the petitioner has filed a petition before the Apex Court for transferring the petitions for divorce as well as custody of the child to a court at Bangalore and as per Ext.R1(a) order the Apex court stayed the proceedings in those petitions. Ext.R1(a) however does not stay the proceedings in the custody matter. 6. True, there are allegations that the respondent involved in criminal cases including the one with allegation of commission of rape. The learned counsel appearing for the petitioner would submit that the stand taken by the respondent while he sought bail in Crime No.1456 of 2022 of Kottayam police station was that the alleged act of sexual 5 O.P.(FC) No.565 of 2022 intercourse was a consensual one, whereas in the counter affidavit filed in this Court, he denied very occurrence of such an incident. The learned counsel for the petitioner would contend that the said inconsistent stand itself is enough to deny him custody of the child. 7. Investigation into the offences allegedly committed by the respondent is going on. At this stage, there cannot be a finding that the respondent is guilty and he is ineligible to claim custody of the child. Marriage between the petitioner and the respondent still persists. The child is aged only 4½ years. In such circumstances, the child cannot be completely detached from the respondent-father. It is the right of every child to have company of both the father and mother. 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 6 O.P.(FC) No.565 of 2022 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. 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 7 O.P.(FC) No.565 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. 8 O.P.(FC) No.565 of 2022 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. 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. 11. In the light of the law laid down in the aforesaid decisions, the respondent legitimately can claim to have interaction with the child. Considering the allegation levelled against the respondent and the circumstances borne out from 9 O.P.(FC) No.565 of 2022 the materials on record, we are of the view that the respondent cannot be given overnight custody at present. Therefore Ext.P8 order is modified to the extent that instead of giving interim custody of the child to the respondent-father during vacation, he shall be allowed to have interim custody of the child on every 1[st] and 3[rd] Saturday between 10.00 a.m and 2.00 p.m. Since both parents are residents of Changanassery, interim custody as aforesaid shall be given in the presence of the Chief Ministerial Officer of the Munsiff's Court, Changanassery, who shall ensure that the child is handed over and given back peacefully. Ext.P8 order is modified to that extent and this original petition is disposed of accordingly. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV 10 O.P.(FC) No.565 of 2022 ## **APPENDIX OF OP (FC) 565/2022** ## **PETITIONER EXHIBITS** **Exhibit P1** - **THE TRUE COPY OF THE PETITION DATED 04.10.2021 NUMBERED AS O.P. (G&W) NO. 1184/2021 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **Exhibit P2 TRUE COPY OF THE PETITION DATED 04.10.2021 NUMBERED AS I.A. NO. 1/2021 IN O.P. (G&W) NO. 1184/2021 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **Exhibit P3 TRUE COPY OF THE OBJECTION DATED 25.07.2022 FILED AGAINST AS I.A. NO. 1/2021 IN O.P. (G&W) NO. 1184/2021 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **Exhibit P4 TRUE COPY OF THE F.I.R DATED 06.08.2022 IN CRIME NUMBER NO.1456 OF 2022 ON THE FILES OF THE KOTTAYAM EAST POLICE STATION, KOTTAYAM DISTRICT** - **Exhibit P5 TRUE COPY OF THE F.I.R DATED 19.06.2021 IN CRIME NUMBER 1148 OF 2021 ON THE FILES OF THE CHANGANASSERRY POLICE STATION, KOTTAYAM DISTRICT** - **Exhibit P6 TRUE COPY OF THE COMPLAINT DATED 06.08.2022 IN UNNUMBERED CRL.MP.IN C.C.NO.1456 OF 2022 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE – 1 COURT AT KOTTAYAM** - **Exhibit P7** - **TRUE COPY OF THE DEPOSITION DATED** 11 O.P.(FC) No.565 of 2022 - **03.07.2021 OF THE RESPONDENT HEREIN IN CRIME NUMBER 1148 OF 2021 OF CHANGANACHERRY POLICE STATION, KOTTAYAM DISTRICT** - **Exhibit P8** - **TRUE COPY OF THE ORDER DATED** - **08.08.2022 IN I.A. NO. 1 OF 2021 IN O.P. NO. 1184 OF 2021 ON THE FILES OF THE COURT OF THE JUDGE FAMILY COURT KOTTAYAM AT ETTUMANOOR** ## **Exhibit P9** - **TRUE COPY OF THE PETITION DATED 08.02.2022 NUMBERED AS O.P. NO. 419 OF 2022 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR** ## **Exhibit P10** - **TRUE COPY OF THE PETITION DATED 23.09.2021 NUMBERED AS O.P. (DIV) NO. 1166 OF 2021 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR** - **Exhibit P11** - **TRUE COPY OF THE ORDER DATED 23.08.2022 IN CRIMINAL M.P. NO. 1799/2022 ON THE FILES OF THE HONORABLE COURT OF SESSION, KOTTAYAM** ## **RESPONDENT'S EXHIBITS** - **Exhibit -R1(a)** **True copy of the interim order of the Apex Court in transfer petition(s) (civil) No(s). 1532-1533/2022**