## **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. 651 OF 2021**
**AGAINST THE COMMON ORDER DATED 04.10.2021 IN I.A.NO.6599 OF 2019, I.A.NO.6 OF 2021, I.A.NO.7 OF 2021 AND I.A.NO.9 OF 2021 IN O.P.NO.1621 OF 2019 OF THE FAMILY COURT, THRISSUR PETITIONER:**
## **SAYANA**
**AGED 32 YEARS, D/O. IQBAL MOHAMMED, PUTHUVEETTIL HOUSE, THAIKKAD POST, GURUVAYOOR, CHAVAKKAD TALUK, THRISSUR - 680104.**
**BY ADV R.PADMAKUMARI**
## **RESPONDENT:**
## **ABDUL RAZAK IBRAHIM**
**AGED 36 YEARS, S/O. T. M. IBRAHIM, VALIYAPARAMBIL HOUSE, RAYIRIMANGALAM DESOM, TANUR VILLAGE, TIRUR TALUK, TANUR P.O., MALAPPURAM DISTRICT.**
**BY ADV T.P.SAJID**
**THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## Ajithkumar, J.
This Original Petition is filed under Article 227 of the Constitution of India challenging Ext.P6 order dated 04.10.2021 of the Family Court, Thrissur.
2. As per Ext.P6, I.A.Nos.6599 of 2019, 6 of 2021, 7 of 2021 and 9 of 2021 were disposed of. Directions are contained in paragraphs 6 to 8, which are extracted below:-
“6. Considering all these documents, I am inclined to allow the petitioner to have interim custody of the child on first half of Onam, Christmas and Summer vacations. Also the petitioner is allowed to interact with the child over telephone on every Wednesday and Sunday between 7.30 pm and 8 pm.
7. The respondent is directed to provide telephone number or e-mail ID to the petitioner so as to have contact with the child through video call or video conferencing.
8. Also, the respondent is directed to inform the petitioner the date of commencement of vacation and the time of production of the child before the office of this court at least one week in advance.”
3. On 03.11.2022, this Original Petition was admitted
to file directing urgent notice on the respondent. On
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22.03.2022, the parties were directed to appear before this Court along with the child on 31.03.2022. Parties as well as the child appeared before this Court on 31.03.2022. After interacting with the parents and the child, this Court passed the following order:
“The respondent/father has come down from Dubai. We allow the child to be in the custody of the father. The child has some dislikes. However, we find that, that may not be a reason to deny father the contact and visitation rights. We direct both parties not to reflect their feelings upon the child. Both are restrained from speaking against each other. We also allow both parties to record the video conferencing. It is submitted that the child is having exams till 08.04.2022.”
4. The learned counsel appearing for the petitioner would submit that interim custody of the child as ordered in Ext.P6 requires revision as the said order was passed arbitrarily and the arrangement as per it is prejudicial to the interest of the minor child, Imran, aged 8 years. It was in the meantime the Family Court, Thrissur passed another interim order regarding custody of the child. As reflected from Ext.P9, which is a copy of A-Diary in O.P.No.1621 of 2019, the
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order reads thus:
“xxxxx. IA 15/22–Heard both sides. As per order in IA 6599/2019 vacation custody already granted. There is no stay by the Hon'ble HC. Moreover, the Hon'ble HC as per order dated 31.03.2022 in OP (FC) 651/2021 specifically held as follows “we allow the child to be in the custody of the father”. Therefore the respondent is directed to comply with direction for vacation custody. But it is pointed out that the minor is studying in Bangalore and there is no Onam and X'mas vacation in Bangalore. Hence the respondent is directed to hand over custody at 10 AM on 17.09.2022 till 5 PM on 18.09.2022 at the office of this court. IA allowed accordingly.”
5. The petitioner has filed I.A.No.1 of 2022 seeking to modify the directions in Ext.P9. The learned counsel appearing for the petitioner contends that the direction as per Ext.P9 will affect studies of the child and it amounts to denial of the right of the petitioner-mother. The learned counsel appearing for the respondent, on the other hand, would contend that such an order alone is feasible taking into account the fact that the child is studying in Bangalore.
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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.
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
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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 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
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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 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
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the child must get precedence over the individual or personal rights of the parents.
9. Needless to say the paramount consideration shall always be the interest of the child. Considering the facts of the case in the light of the law laid down by the Apex Court in the aforesaid decisions, the conclusion is irresistible. There is no reason to interfere with Ext.P6 or P9. We find no impropriety or illegality with the said orders warranting interference by this Court in exercise of the jurisdiction of this Court under Article 227 of the Constitution of India.
The original petition is accordingly dismissed.
Sd/- **ANIL K. NARENDRAN, JUDGE**
Sd/-
**P.G. AJITHKUMAR, JUDGE**
dkr
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## **APPENDIX OF OP (FC) 651/2021**
## **PETITIONER EXHIBITS**
- **Exhibit P1 THE TRUE COPY OF THE MEMORANDUM OF ORIGINAL PETITION IN OP 1621/2019 ON THE FILES OF THE FAMILY COURT, THRISSUR.**
- **Exhibit P2 TRUE COPY OF THE JUDGMENT IN WP(CRL) 126/2018 DATED 09.04.2018 ON THE FILES OF HIGH COURT OF KERALA.**
- **Exhibit P3 THE TRUE COPY OF THE COUNTER IN IA 6599/2019 BEFORE THE FAMILY COURT, THRISSUR.**
- **Exhibit P4 THE TRUE COPY OF THE COUNTER IN IA 6/2021 BEFORE THE FAMILY COURT, THRISSUR.**
- **Exhibit P5 THE TRUE COPY OF THE IA 7/2021 AND ITS COUNTER FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THRISSUR.**
**Exhibit P6**
- **THE TRUE COPY OF THE COMMON ORDER IN IA 6599/2019, I.A.6/2021, I.A.7/2021 & I.A.9/2021 DATED 04.10.2021 IN OP 1621/2019 ON THE FILES OF THE FAMILY COURT, THRISSUR.**
- **Exhibit P7**
**THE TRUE COPY OF THE JUDGMENT DATED 31.10.2019 WP(CRL) 371/2019 ON THE FILES OF THE HIGH COURT.**
