Susan Thomas v. Bastin Johnson

# **`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 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 ``` ``` OP (FC) NO. 445 OF 2022 ``` ``` OP(G&W)NO.1755 OF 2021 OF FAMILY COURT, TRIVANDRUM ``` ## **`PETITIONER/PETITIONER IN IA:`** ``` SUSAN THOMAS, AGED 33 YEARS, W/O BASTIN THOMAS, HEERA SWISS TOWN-OAK LEAF-13A, SASTHAMANGALAM.P.O.,THIRUVANANTHAPURAM PIN - 695030 ``` ``` BY ADVS.A.RAJASIMHAN VYKHARI.K.U SHARAFUDHEEN M.K. ``` ## **`RESPONDENT/RESPONDENT IN IA:`** ``` BASTIN JOHNSON, QUARTERS NO. 36, POLICE QUARTERS, BHAKTHI VILASOM, DPI JUNCTION, VAZHUTHACAUD.P.O., JAGATHY, THIRUVANANTHAPURAM, PIN - 695014 ``` ``` BY ADVS.SASTHAMANGALAM S. AJITHKUMAR S RENOY MOHAN(K/1268/2009) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(FC)No.445 of 2022 ## **JUDGMENT** Anil K. Narendran, J. The petitioner filed O.P.(GW)No.1755 of 2021 on the file of the Family Court, Thiruvananthapuram seeking permanent custody of the minor children by name Jwana Bastin aged 10 years and Ewan Bastin aged 5 years. Along with the above original petition, the petitioner filed I.A.No.1 of 2021 (wrongly stated as I.A.No.1 of 2022 in this original petition) seeking interim custody of the minor children. The petitioner has filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order directing the Family Court, Thiruvananthapuram to decide the interim custody of the children in I.A.No.1 of 2021 (Ext.P2) in a time bound manner to be fixed by this Court. 2. On 10.08.2022, when this original petition came up for admission, this Court issued notice before admission to the respondent by speed post. On 24.08.2022, when this matter came up for consideration, both parties were directed to appear before this Court on the next posting date along with their children. 3 OP(FC)No.445 of 2022 3. Pursuant to the above order, both parties are present in Court along with their minor children. We have interacted with the petitioner-mother, the respondent-father and also the minor children. The petitioner-mother was permitted to have interaction with her minor children. Thereafter, we had another session of interaction with the children. We have heard the arguments of the learned counsel on both sides. 4. In **Sanumol C.C. and others v. Sunny P.C. [2015** **(4) KHC 99]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party, held that the paramount consideration of the Family Court exercising _parens patriae_ jurisdiction while deciding the question of custody is the - welfare and well being of the minor children and not the rights of their parents who are at loggerheads with each other. 5. 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 4 OP(FC)No.445 of 2022 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. 6. 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 5 OP(FC)No.445 of 2022 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. 7. In the instant case I.A.No.1 of 2021 in O.P(GW)No.1755 of 2021 filed by the petitioner-mother seeking 6 OP(FC)No.445 of 2022 interim custody of the minor children is pending consideration before the Family Court, Thiruvananthapuram. The respondentfather has already filed counter affidavit in I.A.No.1 of 2021. Today, the petitioner-mother was permitted to have interaction with the minor children. Having considered the submissions made by the learned counsel on both sides, we are of the view that a time bound consideration of I.A.No.1 of 2021 in O.P(GW)No.1755 of 2021 by the Family Court, Thiruvananthapuram, is highly essential. The Family Court has to take an appropriate decision as to whether the petitionermother can be granted interim custody of the minor children during Onam vacation, taking note of the principle laid down in the decision referred to supra. Before passing such an order, the Family Court shall afford another opportunity to the petitioner-mother to interact with the minor children. Thereafter, the Family Court shall interact with the minor children, before exercising its _parens patriae_ jurisdiction. Both parties and their minor children shall appear before the Family Court, Thiruvananthapuram, on **05.09.2022** and the Family Court is directed to consider I.A.No.1 of 2021 and pass 7 OP(FC)No.445 of 2022 appropriate orders thereon, as directed above. A decision on that application shall be passed either on 05.09.2022 or on 06.09.2022. Both parties are at liberty to raise their legal and factual contentions before the Family Court. With the above directions, this original petition is disposed of. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/2/9 8 OP(FC)No.445 of 2022 ## **`APPENDIX OF OP (FC) 445/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit1 TRUE COPY OF THE PETITION IN OP (GW) NO. 1755/2021 OF THE FAMILY COURT, THIRUVANANTHAPURAM FILED ON 17-8-2021 Exhibit2 TRUE COPY OF THE IA NO. 1/2021 THEREIN FILED BY THE PETITIONER FOR INTERIM CUSTODY OF THE CHILDREN ``` ``` Exhibit3 TRUE COPY OF THE PROCEEDINGS OF THE ABOVE CASE AVAILABLE IN THE E-COURT ``` ``` RESPONDENT EXHIBITS ``` ``` Exhbit R1 (a) THE TRUE COPY OF THE O .P. G W NO.1673/21 Exhibit R1 (b) THE TRUE COPY OF THE ORDER DT.13/8/21 IN I.A.NO.1/21 IN O.P. G W NO.1673/21 ```