Shaheersha v. Shamili

# **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 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 O.P.(FC) NO. 384 OF 2022** **AGAINST THE ORDER DATED 21.10.2021 IN I.A.NOS.2 AND 3 OF 2021 IN G.O.P.NO.1324 OF 2021 ON THE FILE OF THE FAMILY COURT,THRISSUR** ## **PETITIONER:** **SHAHEERSHA AGED 37 YEARS, S/O HANEEFA HAJI, PUTHYKATH HOUSE, KADAPPURAM P.O., KADAPPURAM VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN – 680514.** **BY ADVS. RAJIT LEKSHMI P. NAIR** **RESPONDENT:** **SHAMILI** **AGED 34 YEARS, D/O LATHEEF, THOPPIYIL HOUSE, KATTOOR P.O., KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR, PIN – 680733.** **BY ADVS. K.PAUL KURIAKOSE K.A.ANISH ELDO KURIAKOSE T.A.RAFEEK (CHERTHALA) K.HABEEBULLA** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 09.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.384 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioner is the father of a girl child aged 3½ years. Relationship between the petitioner and the respondent, who is his wife, is estranged. The petitioner has filed G.O.P.No.1324 of 2021 seeking permanent custody of the child. He also filed I.A.Nos.2 and 3 of 2021. I.A.No.2 of 2021 was filed seeking permission to interact with the minor through video call. I.A.No.3 of 2021 was filed by the petitioner seeking interim custody of the child. The Family Court, after hearing both sides, disposed of both the applications as per common order dated 21.10.2021. Aggrieved by the said order, the petitioner has preferred this Original Petition under Article 227 of the Constitution of India. 2. Pursuant to notice, the respondent entered appearance through the learned counsel. 3. As per order of this Court on 20.10.2022 both parties appeared before this Court along with the child on 20.10.2022. They were referred to the Counsellor, Family 3 ## O.P.(FC) No.384 of 2022 Counselling Centre under the High Court Legal Services Committee. We have interacted with both parties and also the child. Perused the report of the Counsellor. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. As per the impugned order, the Family Court allowed the respondent-mother to continue in custody of the child. The petitioner is allowed to interact with the child on regular basis. Interaction was scheduled between 10.00 a.m. and 12.00 p.m. on second and fourth Sunday of every month. 6. The child is aged 3 ½ years. She is staying with the mother comfortably now. 7. 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 4 ## O.P.(FC) No.384 of 2022 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. 8. 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 5 O.P.(FC) No.384 of 2022 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 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. 6 O.P.(FC) No.384 of 2022 9. 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. xx xx xx 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. 10. In the light of the principle laid down in the aforesaid decisions, paramount consideration can be given only to the welfare of the child. Right of the parents in the matter of custody cannot have predominance over the interest 7 ## O.P.(FC) No.384 of 2022 of the child. Considering the age of the child and the fact that she is comfortable in the company of the mother, we do not find any reason to interfere with the order of the Family Court regarding the interim custody. However, considering the submissions made by the learned counsel on either side, dates and timing for the interaction need to be changed. The respondent-mother shall have custody of the child. The petitioner has right of interaction with the child from 10.00 a.m. to 2.00 p.m. on first and third Saturdays of every month. With the above modification, the Original Petition is disposed of. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 8 O.P.(FC) No.384 of 2022 ## **APPENDIX OF OP (FC) 384/2022** **PETITIONER EXHIBITS** **EXHIBIT P1** **THE TRUE COPY OF THE COMMON ORDER IN I.A 2/2021 AND 3/2021 IN GOP 1324/2021 OF THE FAMILY COURT THRISSUR DATED 21.10.2021** **RESPONDENT EXHIBITS** **EXHIBIT R-1(A)** **PHOTOSTAT TRUE COPY OF COMMISSION REPORT DATED 09.02.2022 IN OP NO. 2802/2021 ON THE FILES OF THE FAMILY COURT, THRISSUR**