Sonia Baby and others v. NIBINMMANI

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE P.M.MANOJ THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 OP (FC) NO. 326 OF 2024`** ## **`AGAINST THE ORDER/JUDGMENT DATED IN OPGW NO.394 OF 2023 OF FAMILY COURT, KOTTAYAM`** ## **`PETITIONER/S:`** - **`1 SONIA BABY, AGED 32 YEARS, D/O BABY V.C, VARIPPAKUNNEL HOUSE, NJEEZHOOR P.O, MARANGOLI KARA,KADATHURUTHY VILLAGE, VAIKOM, KOTTAYAM, PIN - 686604`** - **`2 BABY V.C, AGED 58 YEARS, S/O CHACKO, VARIPPAKUNNEL HOUSE, NJEEZHOOR P.O, MARANGOLI KARA, KADATHURUTHY VILLAGE, VAIKOM, KOTTAYAM, PIN - 686604`** - **`3 SOLLY BABY, AGED 56 YEARS,W/O BABY V.C, VARIPPAKUNNEL HOUSE, NJEEZHOOR P.O, MARANGOLI KARA, KADATHURUTHY VILLAGE, VAIKOM, KOTTAYAM, PIN - 686604`** ``` BYADVS. THOMASJ.ANAKKALLUNKAL ANUPAANNAJOSEKANDOTH MELITUSMARIASTANLY JAYARAMANS. DHANYASUNNY ANNMILKAGEORGE ``` ``` RESPONDENT/S: ``` ``` NIBINMMANI,AGED32YEARS,S/OMANITHOMAS, MUNDANANIYILHOUSE,THOVARAYARP.O,SUVARNAGIRIKARA, KATTAPPANAVILLAGE.IDUKKI,PIN-685511 ``` OP(FC) No.326 of 2024 2 ``` BYADVS. SANTHOSHPETER P.N.ANOOP(K/1451/2003) M.S.SANDEEPSUDHAKARAN(K/000598/2018) JOBINGRACETHOMAS(K/000699/2023) ``` ``` THISOP(FAMILYCOURT)HAVINGCOMEUPFORADMISSIONON 23.05.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` OP(FC) No.326 of 2024 3 ## **JUDGMENT** ## **Raja Vijayaraghavan, J.** The first petitioner is the wife of the respondent. The petitioners 2 and 3 are the parents of the first petitioner. The petitioner in his marriage with the respondent has two children. 2. The marital relationship is strained and the parties are residing separately. As the mother is working in the United Kindom in the health sector, the children are with the maternal grandparents. Seeking permanant custody of the children, the respondent approached the Family Court and preferred OP (G & W) 394/2023. 3. While the petition was pending IA No 2/23 was filed seeing interim custody of the Children during vacation and the same was allowed by the Family Court by the impugned order. The Family Court ordered that the custdoy of the Children be handed over to the petitioner from 21.05.2024 till OP(FC) No.326 of 2024 4 ## 29.05.2024. 3. Sri Thomas, the learned counsel representing the petitioner, submitted that the order passed by the Family Court is legally untenable. He emphasized that the elder child has been diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD) and is receiving treatment at Sunrise Hospital, Kakkanad. It is further contended that the physician has prescribed strict dietary guidelines for the eleder child. However,when the child is in their father’s care, they are given foods that contravene these dietary restrictions. This dietary non-compliance has reportedly led to repeated instances of recurrence of illnesses. The counsel submitted that the doctor has opined that the violent and hyperactive behavior is due to the inappropriate dietary choices made by their father. 4. The learned counsel appearing for the respondent refuted the contentions. He submitted that the children need the love and care of both parents. He pointed out that the mother of the children is working abroad and they are left in the company of the aged grand parents. 5. By order dated 20.05.2024, we directed the parties to appear OP(FC) No.326 of 2024 5 along with the children. We have had interactions with the petitioner, who came with the children, the respondent and we have perused the records. It appears that the petitioner is presently working as a Nurse in the United Kingdom and she is going back on 28.05.2024. 6. We find that the Family Court, by the impugned order, had granted custody of both children from 21.05.2024 till 29.05.2024 to the father. We find from the submissions that the elder boy is a school-going child. The school is scheduled to reopen on 04.06.2024. 7. In **Yashita Sahu**[1] , the Apex Court emphasised that the welfare of the child is the primary and paramount consideration in custody matters. Technical objections should not impede this welfare. The court must consider the best interests of the child, rather than the views of one parent alone. Custody battles often portray one parent as a villain, which can harm the child. Therefore, courts must carefully evaluate the statements of both parents. The Apex Court noted that a child of tender years needs the love, affection, company, and protection of both parents, which is a basic human > 1 Yashita Sahu v. State of Rajasthan [2020 KHC 6045] OP(FC) No.326 of 2024 6 right. Parental conflicts should not deprive the child of care from either parent. Frequent separation and reunion can traumatize the child, so courts must meticulously weigh all circumstances before determining custody arrangements. Even if custody is granted to one parent, the other should have sufficient visitation rights to maintain the child's social, physical, and psychological contact with both parents. Denial of contact should occur only in extreme cases, with reasons provided. Courts must clearly define the specifics of visitation rights to ensure the child retains the love and affection of both parents. In **Vasudha Sethi and others v. Kiran V. Bhaskar and another[2]** , the Apex Court held that when the court alters custody from one parent, it should generally grant visitation rights to the other parent, barring compelling reasons. This is because the child benefits from the company of both parents. Visitation rights are granted for the welfare of minors and to ensure they can maintain relationships with both parents, not merely to protect parental rights. The court emphasized that the child's well-being and welfare must take precedence over the individual rights of the parents. In > 2 (AIR 2022 SC 476) OP(FC) No.326 of 2024 7 **Rohith Thammana Gowda v. State of Karnataka[3]** , it was held that in the matter involving the question of custody of a child, it has to be borne in mind that the question 'What is the wish/desire of the child' is different and distinct from the question 'What would be in the best interest of the child'. Certainly, the wish/ desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. It was further held that while considering the claim for custody of a minor child, unless very serious, proven conduct should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely by looking into the question as to, 'what would be the best interest of the child concerned. 8. Having considered the facts, we are of the view that the interim order granting custody to the father for a few days is not liable to be interfered with. However, as the mother is leaving the country on 28th of this month, let the children be with the mother till such day. Custody can be given > 3 [AIR 2022 SC 3511] OP(FC) No.326 of 2024 8 to the father from 29.05.2024 to 2.06.2024. 9. In that view of the matter, in partial modification of the order passed by the Family Court, the custody of the minor children shall be handed over to the respondent at 10.00 AM on 29.05.2024 at the premises of the Family Court, Ettumanoor. The respondent shall return the custody of the children to the petitioners 2 and 3 at 3.00 PM on 02.06.2024. The respondent shall adhere to the strict dietary restrictions and administer the medicines to the children as ordered by the Physician. With the above modification, this petition is disposed of. sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** **sd/-** **P.M.MANOJ JUDGE** das OP(FC) No.326 of 2024 9 ## **`APPENDIX OF OP (FC) 326/2024`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 THE ORIGINAL MEDICAL CERTIFICATE OF THE CHILD DATED 03-04-2023 ISSUED BY DR. NEENA SHILEN, DEVELOPMENTAL PEDIATRICIAN OF SUNRISE HOSPITAL, KAKKANAD`** - **`Exhibit P2 THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 08-02-2024, SHOWING THE CONDITION OF THE CHILD`** - **`Exhibit P3 THE MEDICAL REPORT / O.P. TICKET OF THE CHILD UNDERGOING THE TREATMENT IN COMMUNITY HEALTH CENTRE ARUNOOTIMANGALAM DATED 03/01/2024`** - **`Exhibit P4 THE MEDICAL CERTIFICATE DATED 22-03-2024 ISSUED BY THE CONCERNED MEDICAL OFFICER OF SUNRISE HOSPITAL`** - **`Exhibit P5 THE TRUE COPY OF THE PETITION I.A 9/24`** ``` ExhibitP6THEOBJECTIONFILEDBYTHERESPONDENTSIN IA9/24ISPRODUCED ExhibitP7THETRUECOPYOFTHEORDERINI.A9/24 DATED03-05-2024 ExhibitP8THETRUECOPYOFTHEMEDICALCERTIFICATE DATED03/05/2024ISSUEDBYDR.NEENA ``` OP(FC) No.326 of 2024 10 ``` SHILEN,DEVELOPMENTALPEDIATRICIAN,SUNRISE HOSPITAL,KAKKANAD ``` ``` ExhibitP9THETRUECOPYOFTHEI.A.NO.2/2023 ExhibitP10THETRUECOPYOFTHEORDERINI.A ``` ``` THETRUECOPYOFTHEORDERINI.ANO.2/23 ```