Sarath C v. Neethu Mohan Sangeerthanam and others

# **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 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 O.P(FC) NO.681 OF 2022** **AGAINST THE ORDER IN I.A.NO.3341 OF 2020 IN O.P(G&W) NO.1913 OF 2020 OF FAMILY COURT, ERNAKULAM** **PETITIONER:** **SARATH C AGED 35 YEARS VATTEKKAT HOUSE AKODI LANE, KILLANNUR RESIDING AT 6B, RAK PRINCESTON, MAROTTICHUVADU, EDAPALLY, ERNAKULAM, PIN - 682024 BY ADVS. S.JAYANT JEREES J. S.CHANDRASEKHARAN NAIR PRASANTH N.L.** ## **RESPONDENTS:** **1 NEETHU MOHAN SANGEERTHANAM, KARUMALLOOR ALANGAD, ALUVA, KERALA., PIN - 683511 2 SHOBHANA MOHAN AGED 58 YEARS SANGEERTHANAM, KARUMALLOOR ALANGAD, ALUVA, KERALA., PIN - 683511 3 MOHANAN P.G AGED 63 YEARS SANGEERTHANAM, KARUMALLOOR** 2 O.P.(FC) No.681 of 2022 **ALANGAD, ALUVA, KERALA., PIN - 683511** **BY ADVS. Hariraj Madhav Rajendran M.R.H. THANUJA ROSHAN(K/1446/2002) VISWAJITH C.K(K/001253/2018) GISHA G. RAJ(K/000402/2020) REJIVUE K.C.(K/000387/2020) ALINA ANNA KOSE(K/001413/2021) VIDYA A.K(K/453/2020) AKHILA S.(K/2942/2022) MEGNA MARIYAM M.(K/002917/2022)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.681 of 2022 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner has filed O.P.(G&W) No.1913 of 2020, invoking the provisions under the Guardians and Wards Act, 1890 seeking an order appointing him as the guardian of the minor child Advik S. Nair and to direct the respondents namely, mother and maternal grandparents, to handover custody of the minor child to the petitioner. In that original petition, the petitioner filed I.A.No.3341 of 2020 seeking interim custody of the minor child. In that interlocutory application, the Family Court passed Ext.P4 order, whereby the respondents are directed to give custody of the minor child to the petitioner, in between 10.30 a.m till 4.00 pm on 1[st] and 3[rd] Sundays in the premises of this Court. Apart from that, the respondents are directed to give custody of the child to the petitioner from 07.09.2022 from 10.00 a.m till 4.00 p.m in the onam vacation, in the premises of this Court. 2. Challenging Ext.P4 order dated 24.08.2022, the petitioner is before this Court in this original petition, invoking 4 ## O.P.(FC) No.681 of 2022 the supervisory jurisdiction under Article 227 of the Constitution of India. 3. On 12.12.2022, when this original petition came up for admission, this Court issued notice on admission to the respondents. The learned counsel for the petitioner was permitted to take out notice to the respondents through their counsel before the Family Court, Ernakulam, where O.P.(GW) No.1913 of 2020 is pending consideration. 4. On 21.12.2022, when this original petition came up for consideration, the respondents entered appearance through counsel. The learned counsel for the respondents pointed out that the petitioner has not chosen to pay monthly maintenance at the rate of Rs.2,000/- each to the wife and minor child, which is in arrears from the date of M.C.No.187 of 2021. 5. Heard the learned counsel for the petitioner and also the learned counsel for the respondents. 6. The issue that arises for consideration in this original petition is as to whether any interference is warranted 5 O.P.(FC) No.681 of 2022 on Ext.P4 order dated 24.08.2022 in I.A.No.3341 of 2020. 7. The minor child is presently aged 6 years. The petitioner has already been granted visitation right in terms of Ext.P4 order, which is one dated 24.08.2022. 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 he or she alone is entitled to custody of the child. The court 6 O.P.(FC) No.681 of 2022 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 and does not lose social, physical and psychological contact 7 O.P.(FC) No.681 of 2022 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 having the company of both parents. Such orders are not 8 O.P.(FC) No.681 of 2022 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. The decision in **Vasudha Sethi** (supra) 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** and **Vasudha Sethi** referred to supra, we are of the view that the wish of the child has to be taken into account before ordering interim custody of the child. 12. It is for the petitioner to avail the visitation right in terms of Ext.P4 order and develop social and psychological contact with the minor child. After four months, the petitioner 9 O.P.(FC) No.681 of 2022 can approach the Family Court for modification of Ext.P4 order, by seeking overnight custody, in which event, the Family Court shall consider that request, after interacting with the minor child, taking note of the law laid down by the Apex Court in the decisions referred to supra. 13. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 14. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 10 O.P.(FC) No.681 of 2022 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 15. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasijudicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be 11 O.P.(FC) No.681 of 2022 exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 16. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 17. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. 12 O.P.(FC) No.681 of 2022 Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 18. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal 13 O.P.(FC) No.681 of 2022 has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. Viewed in the light of the law laid down in the decision referred to supra, we find no reason to interfere with the reasoning of the Family Court in Ext.P4 order. This original petition fails and the same is accordingly dismissed, subject to the observation herein before at paragraph 12. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** PV 14 O.P.(FC) No.681 of 2022 ## **APPENDIX OF OP (FC) NO.681/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1** **A TRUE COPY OF THE PETITION FILED BY PETITIONER FOR GETTING CUSTODY OF THE CHILD BEFORE FAMILY COURT, ERNAKULAM AS OP NO 1913 OF 2020** **Exhibit P2 A TRUE COPY OF PETITION FILED BY PETITIONER AS IA NO 3341 OF 2020 IN OP NO 1913 OF 2020FOR GETTING INTERIM CUSTODY OF CHILD UNDER SECTION 12 OF THE GUARDIAN AND WARDS ACT** - **Exhibit P3 A TRUE COPY OF PETITION FILED AS IA NO 3466 OF 2021 IN OP NO 1913 OF 2020 OF FAMILY COURT, ERNAKULAM** - **Exhibit P4 A TRUE COPY OF ORDER IN IA NO 3341/2020 IN OP NO 1913 OF 2020 OF FAMILY COURT, ERNAKULAM DATED 24-08-2022** **Exhibit P5 A TRUE COPY OF OP(G&W) NO 2124 OF 2020 PENDING BEFORE HON'BLE FAMILY COURT, ERNAKULAM**