Sajil T Devadas v. Honey Sabu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** **Mat.Appeal.No. 392 of 2018** **AGAINST THE ORDER IN OPGW 425/2014 of FAMILY COURT, IRINJALAKUDA DATED 05-03-2018** ## **APPELLANT:** **SAJIL T DEVADAS AGED 41 YEARS, S/O.THACHAPPILLY DEVADAS, ENGANDIYOOR VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.RAJIT** ## **RESPONDENT/RESPONDENT:** **HONEY SABU AGED 38 YEARS, S/O.M.N.SABU, 'AGADA', MANGATTU VEEDU,NADAVARAMBU, VELOOKKARA, MUKUNDAPURAM, THRISSUR DISTRICT-680121.MINORS WHOSE CUSTODY IS SOUGHT FOR:1. ABHINAV SAJIL, AGED 13 YEARS, S/O.SAJIL T.DEVADAS,RESIDING AT 'AGADA', MANGATTU VEEDU, NADAVARAMBU, VELOOKKARA, MUKUNDAPURAM, THRISSUR DISTRICT.2. ANAGHA SAJIL, AGED 6 YEARS, S/O.SAJIL T.DEVADAS,RESIDING AT 'AGADA', MANGATTU VEEDU, NADAVARAMBU, VELOOKKARA, MUKUNDAPURAM, THRISSUR DISTRICT.** **BY ADVS. SRI.C.S.AJITH PRAKASH SRI.A.TJOSE SRI.BIJITH S.KHAN SRI.M.BAIJU NOEL SRI.PAUL C THOMAS SRI.T.K.DEVARAJAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.392/2018 2 **“CR”** ## **C.K.ABDUL REHIM** ## **& R.NARAYANA PISHARADI, JJ.** ************************** Mat.Appeal No.392 of 2018 -----------------------------------------Dated this the 26[th] day of October, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions, must yield to considerations of the welfare of the children as human beings so that they may grow up in a normal balanced manner to be useful members of the society ( **Gaurav Nagpal v. Sumedha Nagpal : AIR 2009 SC 557** ). 2. The appellant is the husband and the respondent is the wife. The marriage between them was on 14.12.2002. They have got two children. The elder child Abhinav is now aged 14 years. He was born on 06.02.2004. The younger child Anagha is now aged seven years. She was born on 05.07.2011. 3. Matrimonial discords erupted between the appellant Mat.Appeal No.392/2018 3 and the respondent during the year 2013. They are living separately from 07.10.2013 onwards. The two children are residing with their mother. 4. The father filed O.P.No.425/2014 in the Family Court for granting a decree declaring him as the guardian of the minor children. He also sought permanent custody of the children. The mother stiffly resisted his claim. 5. During the trial of the case, PW1 to PW3 were examined and Exts.A1 to A11 documents were marked on the side of the father. RW1 was examined and Exts.B1 to B14 documents were marked on the side of the mother. 6. After appreciating the evidence on record, the Family Court found that the father is not entitled to get permanent custody of the two children and granted him only visitaion right on the children. The Family Court permitted the petitioner to visit the house of the respondent and interact with the elder child between 10 a.m to 1 p.m on the first and the third Saturdays of every month. The Family Court ordered that the father shall have the company of the daughter on every second Saturdays and Sundays from 8 a.m to 5 p.m and if it is inconvenient to the parties on such dates, on the fourth Saturday of every month, till the daughter attained the Mat.Appeal No.392/2018 4 age of ten years. Aggrieved by the aforesaid order, the father has come up in appeal. 7. We have heard learned counsel for the appellant and also the respondent. We have also perused the records. 8. Section 6 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as 'the Act') provides that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him, the mother. However, the right of the mother to act as the guardian does not stand obliterated during the lifetime of the father. The father, by reason of a dominant personality, cannot be ascribed to have a preferential right over the mother in the matter of guardianship. This provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor ( **Surindar Kaur Sandhu v. Harbax Singh Sandhu : AIR 1984 SC 1224** and **Githa Hariharan v. Reserve Bank of India: AIR 1999 SC 1149** ). 9. Section 13(1) of the Act states that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. Section 13(2) of the Act provides that no person shall be entitled to the guardianship by virtue Mat.Appeal No.392/2018 5 of the provisions of the Act or of any law relating to guardianship in marriage among Hindus, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor. 10. While considering the provisions of Section 13 of the Act, the Hon'ble Supreme Court, in the case of **Gaurav Nagpal v. Sumedha Nagpal : AIR 2009 SC 557** , has held that the word 'welfare' used in that provision has to be construed literally and must be taken in its widest sense. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. The 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. 11. Section 13 of the Act makes it manifestly clear that the paramount consideration is the welfare of the minor child and not statutory rights of the parents. When the court is confronted with conflicting demands made by the parents for the custody of the minor children, the issue needs Mat.Appeal No.392/2018 6 consideration not only on legalistic basis but also on human angles. Due weightage shall be given to the child's ordinary contentment, health, education, intellectual development and favourable surroundings. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. A court, while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child (See **Nil Ratan Kundu v. Abhijit Kundu : (2008) 9 SCC 413** ). Availability of an appropriate and conducive environment for the proper upbringing of the child together with the ability and means of the concerned parent to take care of the child are relevant factors. 12. In the instant case, the boy is now aged 14 years. He has been diagonised of a rare disease 'Duchenne Muscular Dystrophy' (DMD). It is stated that the average life expectancy of a person affected with DMD is only around 17 years. This disease causes progressive proximal muscle weakness of the legs and pelvis which spreads to the arms, neck and other areas leading to several other symptoms and Mat.Appeal No.392/2018 7 ## skeletal deformities. 13. The boy was subjected to examination by a Medical Board of the Government Medical College, Thrissur. Ext.B1 report of the Medical Board shows that there is no curative treatment for DMD. It is stated in Ext.B1 report that there would be no additional advantage by taking the child to a higher centre for treatment. The child has now become wheel chair bound. In such situation, what can be done is to provide the boy the best possible care, love and comfort for his remaining life. The boy has been taken care of well by the mother for a long period. The father cannot have a complaint that the mother has not done everything possible for the comfort of the boy. She has provided the boy with special bed and wheel chair, spending huge amount of money. She is looking after the boy well. In these circumstances, the mother is the best suitable guardian for the boy. It will not be in the best interest of the boy to grant his custody to the father. At the same time, the father cannot be denied visitation right on the boy. 14. The girl is now aged seven years. She is now studying in the second standard. She has been residing with the mother from the year 2013 onwards. Mat.Appeal No.392/2018 8 15. Section 17 (3) the Guardians and Wards Act Act, 1890 states that if minor is old enough to form an intelligent preference, the court may consider that preference. Interaction with the child helps the court in performing the onerous duty in exercising the discretionary jurisdiction and in deciding the delicate issue of custody of a child. But, the final decision rests with the court which is bound to consider all questions and to make an appropriate order keeping in view the welfare of the child (See **Nil Ratan Kundu v. Abhijit Kundu : (2008) 9 SCC 413).** 16. We have interacted with the girl child. She expressed reluctance to go with the father or live with him. She stated that she wants to continue to have the company of the mother. 17. When the child expresses reluctance to go with or live with one of the parents, the task of the court becomes delicate and difficult. The question would then necessarily arise whether the wish expressed by the child is voluntary or not. The court has to consider whether the child is old enough to form an intelligent preference. While ascertaining the wishes of the minor, the court shall take into consideration the age of the child. Another relevant and important factor is the Mat.Appeal No.392/2018 9 person who was in custody of the child at the time of interaction with the child and immediately prior to it. It is quite natural that when the child, who has been living with one of the parents, is produced before the court by him/her, the child would show an inclination to continue to have the company of that parent. A child is honest by nature. Tutoring makes him/her dishonest. 18. The wish and desire of the minor cannot control the discretion of the court. The court has to assess the entire facts and circumstances of the case. In appropriate cases, the court may disregard the desire and the preference expressed by the child, especially when the court is of the impression that the child has not expressed his/her desire voluntarily, but under influence and tutoring. 19. In the instant case, we are of the view that the girl child, aged only seven years, is not capable of forming an intelligent preference. She is not capable of taking a rational decision as to who should be her guardian. We are also of the view that the child had been tutored before we interacted with her. She has stated that her father had thrown a stick on her when she was lying in the cradle. The child could not have remembered such an incident, if at all happened, when she Mat.Appeal No.392/2018 10 was a baby lying in the cradle. This statement made by the girl child indicates that she had been tutored by her mother. We are satisfied that the wish and desire expressed by the child cannot be treated as independent. The girl is gullible and she can be easily influenced and tutored. Therefore, we cannot attach much importance to the desire expressed by her. We intend to ignore the wish and desire expressed by the girl child and take a decision on her custody based on the other facts and circumstances of the case. 20. The father is an undergraduate. He was working abroad. He has abandoned that job. He was examined as PW1. He has not given any evidence regarding his present job. He has stated that he gets an income of Rs.50,000/- per month. But, there is no reliable evidence regarding his income. There is also no reliable evidence regarding his financial status. He has stated that he has got deposit of Rs.1,50,000/- in a bank but he has no other savings. 21. The mother is working as Assistant Professor in the Government Arts and Science College, Chelakkara. She gets a salary of around Rs.5,00,00/- per month. She has constructed a new house. Her parents are living with her. 22. The girl child is now aged seven years. The daughter Mat.Appeal No.392/2018 11 would soon need her mother's advice and guidance on several matters of importance. Very shortly, she may require the guidance, help and protection of the mother on matters of physiological changes. We also take note of the fact that the mother, being a teacher, would be more suitable to attend to her educational needs. 23. In this context, we take note of the decision of this Court in **Venugopalan v. Beena : 2006 (4) KLT 936** , in which it is stated as follows: _“Very shortly she might be in need of a close, personal guidance, including monitoring of her physiological changes. A mother's constant presence can instil in a minor's mind qualities of fidelity in life, and faith in the institution of marriage as well as solemn relations, essential for community life. In areas where lessons are to be imparted, for example in hygiene, grooming, selection of companions and the like, a father will be a poor substitute. An educated mother, who has made express offer, as could be seen from the order of the Family Court, for attending to her educational needs, according to us, is a more suitable person to be entrusted_ Mat.Appeal No.392/2018 12 ## _with custody, if not guardianship”._ 24. Regarding the custody of a girl aged eight years, in **Vivek Singh v. Romani Singh : AIR 2017 SC 929** , the Hon'ble Supreme Court has observed as follows: _“She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility. Involvement of both parents in her life and regular school attendance are absolutely essential at this age for her personality development. She would soon be able to establish her individual interests and preferences, shaped by her own individual personality as well as experience. Towards this end, it also becomes necessary for parents to exhibit model good behaviour and set healthy and positive examples as much and as often as possible. It is the age when her emotional development may be evolving at a deeper level than ever before. In order to ensure that she achieves stability and maturity in her thinking and is able to deal with complex emotions, it is necessary that she is in the company of her mother as well, for some time”._ Mat.Appeal No.392/2018 13 25. The presumption in favour of maternal custody, as sound child welfare policy, is rebuttable and in a given case, it can be shown that the father is better suited to have the custody of the child. In the instant case, the father has not been able to show that he is more suitable to be the guardian in custody of the girl child. There is no doubt that the father is very fond of the girl child and he is very concerned about her welfare and future. Simply because the father loves his child, and is not shown to be otherwise undesirable as a guardian, does not necessarily lead to the conclusion that the welfare of the child would be better promoted by granting custody of the child to him. We are conscious of the fact that the girl child has been in the custody of the mother for over five years to the exclusion of the father and obviously, during all this period, the mother would not have said anything about the positive traits of the father. But, we are of the view that, a sudden change in the atmosphere of residence, that would be caused by granting custody of the girl child to the father, would adversely affect her physical as well as emotional stability, and such change would not be in the best interest of the child. What is required is slow and steady introduction of love and affection and care and protection of a father into her Mat.Appeal No.392/2018 14 mind and life, in a phased manner. The father has to develop a sense of rapport and understanding with the girl child by creating an atmosphere of love and affection so that he can win over the child to himself. Towards that end, we intend to grant visitation right to the father on the girl child for some period and later, custody of the child for short durations. We hope that it would work out and it would be in the best interest of the girl child. 26. The mother has got a grievance that the father has not provided any maintenance to the children. On the other hand, the contention of the father is that the mother does not accept the money offered by him. When examined as PW1, the father has given evidence that he is ready to pay Rs.10,000/- per month towards the maintenance of the children. He has stated that he has got an income of Rs.50,000/- per month. We find it proper to direct him to pay Rs.5,000/- per month towards the maintenance of the elder child and Rs.3,000/- per month towards the maintenance of the younger child. 27. We, accordingly, dispose of this appeal by modifying the order passed by the learned Judge of the Family Court in O.P.No.425 of 2014 as follows: Mat.Appeal No.392/2018 15 (1) The appellant will be at liberty to visit the minor son at the respondent's house and interact with him on all Sundays between 10 a.m and 12 noon. The respondent shall ensure the presence of the son in her house at that time. The respondent shall allow the appellant free access to the minor son at her house for that purpose and she will not cause or create any problems during the aforesaid time. (2) The appellant is granted custody of his daughter on the second Saturday and fourth Saturday of each month between 9.00 a.m and 4 p.m. The exchange of the girl child shall be made at the premises of the Family Court, Irinjalakuda and necessary entries shall be made in that regard in the register kept in that court for that purpose. During this period, the appellant is at liberty to take the girl child to his house. But the child shall not be taken out of Thrissur District during this time. This arrangement shall continue till the Christmas holidays of this year. (3) The appellant is granted custody of his daughter on the same conditions for a period of three days starting from 9.00 a.m on 26.12.2018 till 4 p.m on 28.12.2018 (during the Christmas holidays). (4) The appellant is granted custody of his Mat.Appeal No.392/2018 16 daughter on the same conditions on all Saturdays between 9.00 a.m and 4 p.m during the period starting from 01.01.2019 till the beginning of the summer vacation of that year. (5) The appellant is granted custody of his daughter for a period of ten consecutive days each in the months of April and May during the summer vacation of the year 2019. The appellant is at liberty to approach the Family Court, Irinjalakuda for fixing the time and dates in that regard. If any such application is filed by the appellant, the Family Court shall fix the time and dates in that regard after hearing both parties. (6) The aforesaid arrangement will continue till the end of the summer vacation of the year 2019. Thereafter, the parties will be at liberty to approach the Family Court concerned and file fresh application for custody of the children in the wake of changed circumstances, if any. (7) The appellant shall pay a total amount of Rs.8,000/- per month towards the maintenance of the children. The respondent shall intimate the appellant in writing, through the Family Court, Irinjalakkuda, within a period of three weeks from today, necessary details of the Mat.Appeal No.392/2018 17 bank account into which such amount shall be deposited by the appellant on or before the 5[th] day of each month. On failure of the respondent to furnish such details within that period, the appellant need not pay the amount. The parties shall bear their respective costs in the appeal. (sd/-) ## **C.K.ABDUL REHIM, JUDGE** (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/23/10/18 True Copy PS to Judge