Sowmya Beegum v Shameer and Sri George Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944 O.P(FC) NO.3 OF 2023** **AGAINST THE ORDER DATED 24.12.2022 IN I.A.NO.1 OF 2021 IN O.P (G&W) NO.1171 OF 2021 PENDING ON THE FILES OF THE HON'BLE FAMILY COURT, NEDUMANGAD** ## **PETITIONER/COUNTER PETITIONER:** **SOWMYA BEEGUM, AGED 27 YEARS D/O.SHAJILA BEEVI, S.A MANZIL, CHITTOOR, POTTANKUNNU, DAIVAPPURA P.O., THENNOOR VILLAGE, THIRUVANANTHAPURAM - 695563, PIN - 695563** **BY ADV V.A.VINOD** **RESPONDENT/PETITIONER:** **SHAMEER AGED 39 YEARS S/O.IBRAHIM KUNJU, OTTAKKADAYIL, VATTAKARIKKAKOM, ANAKUDI, PANGODU VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM, PIN - 695562** **SRI.GEORGE MATHEW - RESPONDENT** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.3 of 2023 ## **J U D G M E N T** ## P.G.Ajithkumar, J. O.P(GW) No.1171 of 2021 on the file of the Family Court, Nedumangad was filed by the respondent-father seeking a decree declaring him the legal guardian of his minor children Shana Al Shami, aged 8 years and Shahan Al Shami, aged 7 years and to grant him their custody. The respondent filed I.A.No.1 of 2021 in that O.P. for getting interim custody of the children. The Family court after hearing both sides, as per order dated 24.12.2022, allowed that interlocutory application in part. The children were allowed to be in the custody of the respondent during the first 15 days of the month and to be in the custody of the petitioner during remaining 15 days. The petitioner-mother challenges the said order in this Original Petition filed under Article 227 of the Constitution of India. 2. On 03.01.2023, when this matter came up for admission, the respondent entered appearance through his learned counsel. On the request of the learned counsel for the 3 O.P.(FC) No.3 of 2023 respondent, the matter is adjourned to today. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The contentions of the respondent are that after re-marriage, the petitioner has not been looking after the affairs of the children. Although the parents of the respondent are available at his residence, the children are not allowed to be with him. Thus the respondent contending that in order to ensure the welfare of the children, their custody should be given to him. 5. After hearing both sides, the Family Court observed that both the petitioner as well as the respondent have new marital partners and in such circumstances, the custody of the children have to be equally shared between them. From the submissions made at the Bar, we find that the children are now residing with the petitioner. They are school-going children and they are commuting daily from the petitioner's residence. 4 O.P.(FC) No.3 of 2023 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 5 O.P.(FC) No.3 of 2023 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 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 6 ## O.P.(FC) No.3 of 2023 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. 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. 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 7 O.P.(FC) No.3 of 2023 welfare of the child must get precedence over the individual or personal rights of the parents. 9. In the light of the law laid down by the Apex Court, it has to be ensured that love and affection from both parents are not denied to the children. It is the responsibility of both parents to see that the children are taken care of and they grow in an environment which is conducive to their comfortable stay and proper upbringing. If the children are shuttled between the parents frequently, that may affect their studies. Considering the circumstances in which they are now placed, we are of the view that the respondent can be allowed only to have weekend custody twice a month, for the time being. Impugned order, Ext.P5, therefore requires modification. Accordingly this Original Petition is disposed of and Ext.P5 order dated 24.12.2022 is modified. The respondent shall be given interim custody of the children from 10.00 a.m. on alternate Saturdays and Sundays starting from 07.01.2023. The respondent shall pick up the children on 8 O.P.(FC) No.3 of 2023 10.00 a.m. on Saturday from the residence of the petitioner and drop them there at 5.00 p.m. on Sunday. After two months, the respondent may approach the Family Court for modification of the said arrangement regarding custody, if he desires so. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** PV 9 O.P.(FC) No.3 of 2023 ## **APPENDIX OF OP (FC) No.3/2023** **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION NO. 1171/2021 DATED 30.9.2021 Exhibit P2 TRUE COPY OF IA NO.1/2021 IN OP NO. 1171/2021 OF FAMILY COURT NEDUMANGAD Exhibit3 TRUE COPY OF THE IA NO.1/2022 IN OP NO.1171/2021 OF THE HON'BLE FAMILY COURT, NEDUMANGAD DATED 28.6.2022 Exhibit P4 TRUE COPY OF THE IA NO. 2/2022 IN OP NO. 1171/2021 OF FAMILY COURT NEDUMANGAD Exhibit P5 TRUE COPY OF THE ORDER IN IA NO. 1/2021 IN OP 1171/2021 DATED 24.12.2022 OF FAMILY COURT, NEDUMANGAD**