RUBIYA SAINUDEEN v. SADHIK ALI

# **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 30[TH] DAY OF NOVEMBER 2022/9TH AGRAHAYANA, 1944 OP (FC) NO. 631 OF 2022** **SPEEDY DISPOSAL OF I.A.NO.1 OF 2022 IN O.P.NO.92 OF 2017 ON THE FILES OF THE FAMILY COURT, MUVATTUPUZHA PETITIONER:** **RUBIYA SAINUDEEN** **AGED 26 YEARS, D/O. LATE C.H. SAINUDEEN, CHERIYAJIYIL HOUSE, PERUMATTOM KARA, VELOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK NOW RESIDING AT CHERIYANJIYIL HOUSE, MUDAVOOR P.O, PULINCHODE, MUVATTUPUZHA, PIN – 686669.** **BY ADV BIJU ABRAHAM** ## **RESPONDENT:** **SADHIK ALI AGED 36 YEARS S/O. ALIYAR, KURUMATTUKUDIYIL HOUSE, MATHIRAPPILLY KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, PIN – 686691.** **BY ADVS. Saneer P.M P.M.RAFEEK** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ## O.P.(FC) No.631 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The respondent filed Original Petition No. 92 of 2017 before the Family Court, Muvattupuzha. A compromise agreement was entered into between the parties and that Original Petition was disposed of as 04.05.2017 in terms of the compromise. The petitioner in O.P.No.92 of 2017 filed I.A.No.1 of 2022 seeking modification of the compromise decree. The petitioner herein filed I.A.No.2 of 2022 seeking to consider maintainability of I.A.No.1 of 2022. She has filed this Original Petition under Article 227 of the Constitution of India with a prayer to direct the Family Court, Muvattupuzha to consider I.A.No.2 of 2022 (Ext.P5), before considering I.A.No.1 of 2022 (Ext.P3). 2. On 15.11.2022 notice was directed to be served on the respondent. The respondent on receipt of notice entered appearance through his learned counsel. 3. On 18.11.2022, when the matter came up for consideration, both parties were directed to appear before the court along with the child on 30.11.2022 at 10.15 am. In 3 ## O.P.(FC) No.631 of 2022 terms of the said order, both parties along with the child appeared before the court. We interacted with the child and parents individually. 4. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 5. Ext.P2 is the judgment dated 04.05.2017 and Ext.P1 is the compromise petition. Arrangements regarding the custody of the child have been agreed between the parties. In terms of the said compromise, permanent custody of the child shall be with the mother and the father is allowed to have interaction on second Sunday in every month between 5 p.m. and 6.30 p.m. The venue of the interaction was agreed to be V.M. Public School, Perumattam. Parents of the petitioner were also permitted to interact with the child. 6. The petitioner filed I.A.No.1 of 2022 pointing out that there are changes in circumstances and therefore, he is entitled to get custody of the child, Muhammed Ali who is now aged 5 years. The petitioner has filed a counter to the said petition. She also filed Ext.P5 application requiring the Family Court to consider the maintainability of Ext.P3 application. It 4 O.P.(FC) No.631 of 2022 is contended that the petitioner has no right to ask for modification of that compromise decree. 7. During interaction, the child stated that he has no reluctance to have interaction with the father. When the father complained that the directions in the compromise decree were not duly complied with, the mother stated that due to COVID19 pandemic, there occurred a lapse in taking the child to the venue for interaction. Now the petition, Ext.P3, filed by the respondent to modify the compromise as per Ext.P1 and the petition filed by the petitioner, Ext.P5, seeking to consider the maintainability of Ext.P3 first are pending consideration of the Family Court. 8. In **Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840]** the Apex held that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating 5 ## O.P.(FC) No.631 of 2022 to custody of wards even when based on consent are liable to be varied by the Court if the welfare of the wards demands variation. 9. 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 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. 6 ## O.P.(FC) No.631 of 2022 10. 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 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 7 ## O.P.(FC) No.631 of 2022 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. 11. 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 8 ## O.P.(FC) No.631 of 2022 welfare of the child must get precedence over the individual or personal rights of the parents. 12 **.** It is for the Family Court to decide Exts.P3 and P5 petitions in the light of the law laid down by the Apex Court in the decisions referred to above. This Original Petition is disposed of with the aforesaid observations. The interim custody of the child for the time being shall be governed by the stipulations in Ex.P1 compromise. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(FC) No.631 of 2022 ## **APPENDIX OF OP (FC) 631/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE COMPROMISE PETITION FILED AS I.A.NO.441/2017 IN O.P.NO.92/2017 ON THE FILES OF THE FAMILY COURT, MUVATTUPUZHA Exhibit p2 A TRUE COPY OF THE JUDGMENT DATED 0405-2017 IN O.P.NO.92/2017 ON THE FILES OF THE FAMILY COURT, MUVATTUPUZHA** **Exhibit P3 A TRUE COPY OF THE PETITION FILED BY THE RESPONDENT AS I.A.NO.1/2022 IN O.P.NO.92/2017 ON THE FILES OF THE FAMILY COURT, MUVATTUPUZHA** **Exhibit P4 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A.NO.1/2022 IN O.P.NO.92/2017 ON THE FILES OF THE FAMILY COURT, MUVATTUPUZHA Exhibit P5 A TRUE COPY OF THE APPLICATION TO CONSIDER THE MAINTAINABILITY FILED BY THE PETITIONER AS I.A.NO.2/2022 I.A.NO.1/2022 IN O.P.NO.92/2017 ON THE FILES OF THE FAMILY COURT, MUVATTUPUZHA**