Sandeep Kumar B. v. Thejeswini Raju Bangera

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944 O.P.(FC) NO. 377 OF 2022** **AGAINST THE ORDER DATED 27.04.2022 IN I.A.NO.2 OF 2022 IN O.P.NO.244 OF 2022 OF FAMILY COURT, KASARAGOD** ## **PETITIONER:** **SANDEEP KUMAR B., AGED 38 YEARS, SON OF VAMANA VALACHAL HOUSE, BANDYOD (VIA), MANGALPADY, P.O.VILLAGE, MANJESHWAR TALUK, KASARAGOD DISTRICT, PIN – 671532. BY ADVS. P.V.ANOOP NEETHU C.V. PHIJO PRADEESH PHILIP** ## **RESPONDENT:** **THEJESWINI RAJU BANGEARA AGED 29 YEARS, DAUGHTER OF RAJU BANGERA RESIDING AT BHUSHAN NAGAR, FLAT NO.44, VALSANKAR, SOLLAPPURA M.H, NOW RESIDING AT 1/126 SHREE ANJANAY NEAR KUDUPU TEMPLE, KUDUPU (PO), VAMANJOOR, MANGALA NAGAR, MANGALORE DESKHIN KANNADA, PIN – 575028.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FIONAL HEARING ON 22.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** O.P.(FC) No.377 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner-father, aggrieved of the order of the Family Court, Kasaragod in I.A.No.2 of 2022 in O.P.No.244 of 2022, has filed this Original Petition under Article 227 of the Constitution of India. As per the said order, interim custody of the girl child, Sanvi, aged 6 years, was granted to the respondent-wife on the second Saturdays and the ensuing Sunday and also on the last Sundays. The petitioner would allege that giving such custody to the respondent-mother, who is now living in Mumbai along with another person, would create emotional issues to the child. Therefore, the petitioner seeks to set aside the said order, a copy of which is Ext.P1. 2. On 19.07.2022, the Original Petition was admitted to file. Operation of the order was stayed for a period of six weeks. Today, we heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. **3** O.P.(FC) No.377 of 2022 3. The respondent is the mother. She has filed O.P.No.244 of 2022 for getting permanent custody of the child. The marriage between the petitioner and the respondent is already dissolved. When temporary custody of the child was sought, the Family Court, Kasaragod, after hearing both sides and interacting with the child, passed the order regarding interim custody as stated above. The Family Court further directed that the respondent shall not remove the child outside the territory of her village, where she is residing along with her parents. 4. Going by the averments of the respondent, she has been residing along with her parents at 1-133, Kanadi Kodi, Moodle Perara P.O., Mangalore in Dakshina Kannada. 5. The grievance of the petitioner is that if the child is separated from him and taken to Mumbai, where the respondent is residing with another man now, it would cause embarrassment and emotional issues to the child. It is true that separating from the settled environment may cause psychological set back to the child to a certain extent, but **4** ## O.P.(FC) No.377 of 2022 that, unless it is shown that the same would be prejudicial to the welfare of the child, cannot be a reason to totally deny custody of a child of tender age to her mother. 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 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. **5** O.P.(FC) No.377 of 2022 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 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 **6** ## O.P.(FC) No.377 of 2022 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 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 **7** ## O.P.(FC) No.377 of 2022 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. No doubt, welfare of the child has to be given predominance. Any decision regarding custody of a child shall be taken only in the best interest of the child. Here, the Family Court after interacting with the child, decided to give temporary custody of the child on three days in a month to the mother, with a strict direction not to remove the child from the village where the respondent has been residing along with her parents. Such custody to the mother is certainly helpful to develop the emotional bondage between the child and the mother. When such circumstances are considered in the light of the the law laid down in the aforesaid decisions, it cannot be said that the impugned order is incorrect or not in the best interest of the child. **8** O.P.(FC) No.377 of 2022 10. The learned counsel appearing for the petitioner would submit that the child may not be willing to go with the respondent-mother. The Family Court has directed to hand over the child before the Chief Ministerial Officer, Family Court, Kasaragod. Considering the submission of the learned counsel, we deem it appropriate to direct the Judge, Family Court, Kasaragod, to personally oversee handing over of the custody of the child to the mother. With that observations, the Original Petition is disposed of. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr **9** O.P.(FC) No.377 of 2022 ## **APPENDIX OF OP (FC) 377/2022** **PETITIONER EXHIBITS** **Exhibit P1 ORDER DATED 07.04.2022 IN I.A.NO.2/2022 IN O.P.NO.244/2022 ON THE FILE OF FAMILY COURT, KASARAGOD** **Exhibit2** **TRUE COPY OF THE JUDGMENT DATED 24.02.2021 IN O.P.NO.302 OF 2020 ON THE FILE OF FAMILY COURT, KASARAGOD**