Sajna P.J. and others v. Isahak Ismail

## **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 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944** **OP (FC) NO. 562 OF 2022** **ORDER DATED 02.09.2022 IN I.A. NO. 2 OF 2022 IN GOP NO. 1076/2022 OF FAMILY COURT,THRISSUR** ## **PETITIONERS/RESPONDENTS:** **1 SAJNA P.J, AGED 30 YEARS D/O. PAZHAMBULLYPARAMBILJAMAL,VALAPPAD VILLAGE, KOTHAKULAM, S N ROAD DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT - 680 567. REP. BY POWER OF ATTORNEY HOLDER SAINA, AGED 50 YEARS, W/O.PAZHAMBULLYPARAMBIL JAMAL, VALAPPAD VILLAGE. KOTHAKULAM, S N ROAD DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT., PIN – 680 567 2 SAINA, AGED 50 YEARS, W/O.PAZHAMBULLYPARAMBIL JAMAL,VALAPPAD VILLAGE, KOTHAKULAM, S N ROAD DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN – 680 567 3 JIBIN, AGED 23 YEARS, S/O. PAZHAMBULLYPARAMBIL JAMAL, VALAPPAD VILLAGE, KOTHAKULAM, S N ROAD DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT., PIN – 680 567 BY ADVS.SANTHOSH P.PODUVAL R.RAJITHA CHITHRA S.BABU** ## **RESPONDENT/PETITIONER:** **ISAHAK ISMAIL, AGED 33 YEARS, S/O.CHULLIPARAMBIL ISMAIL BAVA, VADAKKUMKARA VILLAGE, VELLANKALLUR DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-,PIN – 680662** **BY ADVS.KARTHIKA SUKUMARAN SK K.MEERA(K/587/1991) ANJANA M VADHYAR(K/000456/2018)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON** **16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC) NO. 562 OF 2022** 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** Petitioners are the respondents in G.O.P.No.1076 of 2022 filed by the respondent herein-father for permanent custody of the minor daughter by name Shaisa Mariyam, aged 4 years. In that original petition, the respondent filed I.A.No.2 of 2022 seeking interim custody, in which the Family Court, Thirssur passed Ext.P6 order 02.09.2022. By that order, I.A.No.2 of 2022 was allowed thereby permitting the father to have interim custody of the minor child from 11.00 a.m. on every second Saturday till 4.00 p.m. on the following Sunday, during the first three days of Onam and Christmas vacations and also during the first ten days of April and May during summer vacations. The said order is under challenge in this original petition filed by the petitioners invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. On 29.09.2022, when this original petition came up for admission, this Court issued urgent notice on admission by speed post to the respondent, returnable within three weeks. This Court granted stay of operation of Ext.P6 order for a period of one month. The said interim order, which was extended from time to **OP (FC) NO. 562 OF 2022** 3 time, is still in force. 3. Heard the learned counsel for the petitioners and also the learned counsel for the respondent. 4. The learned counsel for the petitioners would contend that the minor child is not having any contacts with the respondent-father for more than four months and in such circumstances, the Family Court went wrong in granting overnight custody of the child to the father. 5. The learned counsel for the respondent would submit that, the father was not having any contacts with the child for a period of four months, since the petitioners were not prepared to handover the child. The respondent-father is legally entitled to have proper contacts with the child, to ensure that the child does not loose social, physical and psychological contact with her father. 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, 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 **OP (FC) NO. 562 OF 2022** 4 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 [(2020) 3 SCC 67]** 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 **OP (FC) NO. 562 OF 2022** 5 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 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 **OP (FC) NO. 562 OF 2022** 6 protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. In view of the settled legal position, the welfare of the minor being the paramount consideration, the court cannot act upon the suggestions of Mr. John Ekelaar in his Article. 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. The decision in **Vasudha Sethi [AIR 2022 SC 476]** was not regarding a post-decree scenario. But when interim custody of a child is the question, the same principle applies equally to the post-decree stage also. In view of the principles laid down in **Yashita Sahu [AIR 2022 SC 476]** and **Vasudha Sethi** , we are of the view that the wish of the child has to be taken into account before ordering interim custody of the child. 10. In **Rohith Thammana Gowda v. State of Karnataka and others [(2022) SCC Online SC 937]** , the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an enquiry regarding custody of children. The **OP (FC) NO. 562 OF 2022** 7 Apex Court after referring to the law laid down in **Nithya Anand Raghawan v. State (NCT of Delhi) and another [(2017) 8 SCC 454]** explained the parameters to be reckoned with while deciding the question of interim custody in a case where there occurs change in the place of residence of children. 11. Viewed in the light of the law laid down in the decisions referred to supra, we find that, in the facts and circumstances of the case on hand, before ordering overnight custody of the minor child to the respondent-father, the Family Court ought to have ordered visitation right to the father for some time so that the minor child develop contacts with her father and thereafter, the Family Court can consider the question as to whether the father can be granted overnight custody. 12. In such circumstances, this writ petition is disposed of by modifying Ext.P6 order dated 02.09.2022 of the Family Court, Thrissur in I.A.No.2 of 2022 in G.O.P.No.1076 of 2022 by granting visitation right to the respondent-father from 11.00 a.m. to 4.00 p.m. on alternate Saturdays. As agreed by both sides, the custody of minor child shall be handed over at Mathilakam Masjid. After a period of two months, the Family Court shall interact with the minor child and thereafter, take an appropriate decision as to **OP (FC) NO. 562 OF 2022** 8 overnight custody and also custody during vacations to the respondent-father, taking note of the law laid down in the decisions referred to supra. The respondent-father shall also be permitted to contact the minor child over phone everyday, between 5.00 p.m. to 7.00 p.m., for 15 to 20 minutes. With the above directions, this original petition is disposed of. Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** DCS/19.11.2022 **OP (FC) NO. 562 OF 2022** 9 ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT -P1** **TRUE COPY OF PETITION IN PETITION IN GOP 1076/22 BEFORE THE FAMILY COURT, IRINJALAKKUDA** **EXHIBIT -P2 TRUE COPY OF I.A. 2/22 IN GOP 1076/22 BEFORE THE FAMILY COURT, IRINJALAKKUDA.** **EXHIBIT -P3 TRUE COPY OF OBJECTION IN I.A. 2/22 IN GOP 1076/22 BEFORE THE FAMILY COURT, IRINJALAKKUDA.** **EXHIBIT -P4 TRUE COPY OF PETITION IN O.P. 645/21 BEFORE THE FAMILY COURT, IRINJALAKKUDA.** **EXHIBIT -P5 TRUE COPY OF I.A. 3/22 IN GOP 1076/22 BEFORE THE FAMILY COURT, IRINJALAKKUDA. EXHIBIT -P6 TRUE COPY OF ORDER DATED 2/9/22 IN GOP 1076/22 BEFORE THE FAMILY COURT, IRINJALAKKUDA**