Sangeetha S. vs Sunil Nair

## **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 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 O.P.(FC) NO. 442 OF 2019** **AGAINST THE DATED 28.03.2019 IN I.A.NO.2774 OF 2018 AND I.A.NO.5113 OF 2018 IN O.P.NO.1236 OF 2010 OF THE FAMILY COURT,ERNAKULAM** ## **PETITIONER:** **SANGEETHA S., AGED 41 YEARS, D/O. SREEDHARAN PILLAI, MANASAROVAR, TEMPLE ROAD, AMBATTU KAVU, THAIKKATTUKARA, ALUVA.** **BY ADV S.SUJINI** ## **RESPONDENT:** **SUNIL NAIR, AGED 46 YEARS, B-78, AWHO COMPLEX, VED VIHAR, SUBHASH NAGAR COLONY, SECUNDERABAD - 15.** **BY ADVS. SMT.K.SUNITHA VINOD SMT.KALYANI.S.VINOD** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** O.P.(FC) No.442 of 2019 ## **JUDGMENT** ## Ajithkumar, J. The respondent-wife in O.P.No.1236 of 2012 before the Family Court, Ernakulam is the petitioner. She challenges the common order dated 28.03.2019 in I.A.Nos.2774 and 5113 of 2018 in O.P.No.1236 of 2010. The petitioner in this Original Petition filed under Article 227 of the Constitution of India seeks to set aside the said order contending that denial of custody to her of the minor child Rohan S.Nair amounts to negation of her maternal right and is against the best interest of the child. It is also alleged that the said order results in losing the bondage between the mother and the son. 2. This Original Petition was admitted to file on 18.02.2021. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. On 21.10.2021, this Court after hearing the submissions of both sides and taking into account the fact **3** O.P.(FC) No.442 of 2019 that the child was studying in Standard X at Secunderabad, passed the following order regarding interim custody of the child,- “3. It is submitted by the learned counsel for the respondent that he has booked a ticket for the child to travel from Secunderabad to Cochin on 28-12-2021 with a return ticket to Secunderabad on 30-12-2021. It is submitted that the flight from Secunderabad will arrive at the Cochin International Airport at 9.00 a.m on 28-12-2021 and, the return flight to Secunderabad on 30-12-2021 is at 7.45 p.m. It is submitted by the learned counsel for the respondent that the custody of the child can be handed over to the petitioner on 2812-2021 at 9.00 a.m from the premises of Cochin International Airport. We allow interim custody of the child to the mother during the above days.” 5. The learned counsel appearing for the respondent would submit that the child is now studying in Standard XI and there are no periods of holidays during Christmas or midsummer; since the child is having coaching classes for the competitive examinations, apart from the regular classes in the school. Schedule for his classes is hectic, and it may not be possible for him to be absent from classes. In such **4** O.P.(FC) No.442 of 2019 circumstances giving long term custody of the child, who is now at Secunderabad to the petitioner-mother, who is staying at Ernakulam, may not befit his welfare. However, the learned counsel submits that the respondent is prepared to hand over custody of the child for five days during Christmas and five days during annual vacation. 6. The learned counsel appearing for the petitioner would contend that the observations in the impugned order dated 28.3.2019 are incorrect and therefore it is required that the custody of the child is given to her in terms of the compromise in O.P.No.1236 of 2010 dated 16.05.2012. 7. As pointed out above as per order dated 21.10.2021, interim custody of the child was given to the petitioner from 28.12.2021 till 30.12.2021. Again custody of the child was given to the petitioner from 20.5.2022 till 29.5.2022. There has not been any allegation for the respondent with respect to the custody of the child with the petitioner during the said periods. However, we are of the view that, taking into account the fact that the child is **5** O.P.(FC) No.442 of 2019 studying in Standard XI at Secunderabad and he has to attend the coaching classes, besides regular classes, it may not be appropriate or in the interest of the child to direct interim custody of the child in terms of the compromise dated 16.12.2012. 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 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 **6** O.P.(FC) No.442 of 2019 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 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 **7** O.P.(FC) No.442 of 2019 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. 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 **8** O.P.(FC) No.442 of 2019 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. 11. In the light of the principle of law laid down in the aforesaid decisions, welfare of the child has to be given utmost importance. Of course, by giving interim custody to the mother-petitioner five days during Christmas and five days during annual vacation the bondage between the mother and the child can be maintained. Taking into account all such aspects, we dispose of this Original Petition with the following directions,- (i) Interim custody of the child, Rohan S.Nair, who is now **9** O.P.(FC) No.442 of 2019 aged 16 years, will be given to the petitioner-mother five days during Christmas and five days during annual vacation; - (ii) The respondent shall intimate the petitioner about the dates of such interim custody and also place, which shall be at Ernakulam, and date for handing over and getting back the custody of the child; and - (iii) This arrangement will continue till altered by the Family Court, Ernakulam or by this Court. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr **10** O.P.(FC) No.442 of 2019 ## **APPENDIX OF OP (FC) 442/2019** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE COMPROMISE PETITION FILED IN OP NO.1236/2010 DATED 16.05.2012 FILED BY THE PETITIONER AND RESPONDENT HEREIN, BEFORE THE FAMILY COURT, ERNAKULAM.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN OP NO.1442/2010 DATED 16.05.2012 PASSED BY THE FAMILY COURT, ERNAKULAM.** **EXHIBIT P3 TRUE COPY OF THE DECREE IN OP NO.1236/2010, DATED 16.05.2012 PASSED BY THE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P4 TRUE COPY OF THE IA NO.340/2014 IN OP NO.1236/2010, DATED 14.01.2014, BEFORE THE FAMILY COURT, ERNAKULAM, FILED BY THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE ORDER OF IA NO.340/2014 IN OP NO. 1236/2010DATED 21.02.2014 PASSED BY THE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P6 TRUE COPY OF THE LETTER, ACCEPTED AND NUMBERED AS IA. NO. 2774/2018 IN OP NO. 1236/2010 BY THE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA NO.2771/2018 IN OP NO.1236/2010 BY THE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P8 TRUE COPY OF THE IA NO.5113/2018 IN OP NO.1236/2010 BY THE FAMILY COURT, ERNAKULAM.** **11** ## O.P.(FC) No.442 of 2019 **EXHIBIT P9** **TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN IA NO.5113/2018 IN OP NO.1236/2010 BY THE FAMILY COURT, ERNAKULAM.** ## **EXHIBIT P10** **TRUE COPY OF THE ORDER PASSED IN IA NO.2774/2018 AND IA NO. 5113/2018 IN OP NO.1236/2010 BY THE FAMILY COURT, ERNAKULAM.** ## **RESPONDENT EXHIBITS** **Exhibit R1** **TRUE COPY OF THE RELEVANT DOWN LOADED WHATSAPP MESSAGES RECEIVED ON THE MOBILE NO.9723643311 SENT BY THE PETITIONER TO THE CHILD.**