VREESHA v. SUJITH SURESH PANIKKER and others

# **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 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944** **O.P.(FC) NO. 48 OF 2023** **AGAINST THE ORDER DATED 17.12.2022 IN I.A.NO.2 OF 2022 IN G.O.P.NO.1924 OF 2022 ON THE FILES OF THE FAMILY COURT, THRISSUR** ## **PETITIONER:** **VREESHA** **AGED 30 YEARS, D/O. PRADEEP, ERANEZHATE PADINATTAYIL HOUSE,CHERKKARA, NATTIKA VILLAGE, CHAVAKKAD TALUK, PIN – 680569.** **BY ADVS.** **N.U.HARIKRISHNA MITHUN BABY JOHN** ## **RESPONDENTS:** **1 SUJITH SURESH PANIKKER, AGED 36 YEARS, S/O. SURESHBABU PANIKKER, FLAT NO. 201, BUILDING NO.C-4, BRAHMA SUN CITY, VEDGAVASSERY, POONE,MAHARASHTRA, NOW RESIDING AT SUBH NILAYA, BUILDING NO.A3, FLAT NO.302, LOGAVU, POONE, MAHARASHTRA, REP. BY POWER OF ATTORNEY HOLDER : PRAMEELA SURESH PANIKKER, W/O. SURESHBABU PANIKKER - 2ND RESPONDENT, PIN – 411040.** **2 PRAMEELA SURESH PANIKKER, S/O. SURESHBABU PANIKKER, FLAT NO. 201, BUILDING NO.C-4, BRAHMA SUN CITY, VEDGAVASSERY, POONE, MAHARASHTRA, NOW RESIDING AT D-, BUILDING NO.A3, FLAT NO.404, MARVEL FIYA SOCIETY, VAGOLI, POONE, MAHARASHTRA, PIN – 411040.** 2 O.P.(FC) No.48 of 2023 **3 SURESHBABU PANIKKER, AGED 71 YEARS, S/O. SAHADEVAM, FLAT NO.201, BUILDING NO.C-4, BRAHMA SUN CITY, VADGAVASSERY, POONE, MAHARASHTRA, NOW RESIDING AT D-, BUILDING NO.A3, FLAT NO.404, MARVEL FIYA SOCIETY, VAGOLI, POONE, MAHARASHTRA, PIN – 411040.** **4 JUBY, AGED 48 YEARS, W/O. PRADEEP, ERANEZHATH PANDINJATTAYIL HOUSE, CHERKKARA, NATTIKA VILALGE & DESAM, THALIKULAM POST, CHAVAKKAD TALUK, PIN – 680569.** **5 PRADEEP AGED 58 YEARS, ERANEZHATH PANDINJATTAYIL HOUSE, CHERKKARA, NATTIKA VILALGE & DESAM, THALIKULAM POST, PIN – 680569.** **R1 TO R3 BY ADVS. SHAIJAN C GEORGE C GEORGE VINAI JOHN** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.48 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The 1st respondent in G.O.P.No.1924 of 2022 has filed this Original Petition under Article 227 of the Constitution of India seeking to quash Ext.P5 order dated 17.12.2022 in I.A.No.2 of 2022 of the Family Court, Thrissur. As per that order, the petitioners was allowed interim custody and visitation right of children, Thanishka Sujith Panikker, aged 9 years and Anishka Sujith Panikker, aged 4 years. 2. On 30.01.2023 notice on admission was ordered to be served on respondent Nos.1 to 3. Notice to respondent Nos.4 and 5, who are the parents of the petitioner was dispensed with. Respondents 1 to 3 entered appearance through their learned counsel. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondents 1 to 3. 4. The petitioner is the mother and the 1st respondent is the father. Respondent Nos.2 and 3 are the parents of the 4 O.P.(FC) No.48 of 2023 1st respondent. Respondent Nos.4 and 5 are the parents of the petitioner. The children are now staying with the petitioner at her parental home. The 1st respondent is now working in Pune and he used to visit Kerala only sparingly. Due to disharmony in the marital relationship, the petitioner and the 1st respondent are living separately. For that reason respondents 1 to 3 do not get opportunity to interact with the children. They therefore filed G.O.P.No.1924 of 2022 before the Family Court claiming permanent custody of the children. They filed I.A.No.2 of 2022 seeking to give them interim custody of the children. The petitioner herein filed objection opposing grant of interim custody to the 1st respondent-father. 5. The Family Court referred both parties for counselling. The Judge, Family Court also had interacted with the children and the parents. The report placed on record by the Clinical Psychologist was taken note of. In the light of such materials and also submissions of both parties, the Family Court passed the following order regarding the interim 5 O.P.(FC) No.48 of 2023 ## custody: “7. Admittedly the 1[st] petitioner is working in Pune and he seldom visits the native place. As and when the 1[st] petitioner is available in Kerala, he will be permitted to have interim custody of the minors from 10 am on every 2[nd] and 4[th] Saturday till 4 pm on the following Sunday. Also the 1" petitioner is permitted to have interim custody of the children during the first 5 days of Onam and Christmas vacations and also during first 10 days of April and May in the summer vacations. The 1[st] petitioner is further allowed to interact with the children through video call between 7 pm to 7.30 pm on every day. If the 1[st] petitioner is not available in Kerala petitioners 2 and 3 will be permitted to have day custody of the minors on 2[nd] and 4[th] Sunday from 10 am to 2 pm. I.A disposed of according.” 6. The essential submission of the learned counsel appearing for the petitioner is that the children have no acquaintance with the 1st respondent-father and therefore, giving overnight custody will be detrimental to the interest of the children. Indisputedly the 1st respondent is residing in Pune. In view of the marital discord, the petitioner and the 1st respondent have been living separately for quite some time. 6 O.P.(FC) No.48 of 2023 Owing to those reasons interaction between the children and the 1st respondent does not happen. That certainly would have created an emotional gap between the children and the father. Still, the Judge, Family Court noticed during interaction that the children especially, the elder child has an emotional attachment with the father. 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 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 7 ## O.P.(FC) No.48 of 2023 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 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 8 O.P.(FC) No.48 of 2023 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. 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 9 O.P.(FC) No.48 of 2023 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 law laid down in the aforesaid decisions, it is essential that both parents have opportunity to interact with the children. The fact that the parents are living separate shall not result in total separation of the children from either of the parents. Considering the separation of the children from the father for a long period, giving overnight custody of the children before establishing an emotional bondage between them, can result stress to the children. Considering all such aspects, we are of the view that the directions regarding interim custody in Ext.P5 can be modified to a limited extent. 10 O.P.(FC) No.48 of 2023 11. The learned counsel appearing for the petitioner would point out that the local address of respondent Nos.1 to 3 shall be provided to the petitioner before taking the children in interim custody. The learned counsel appearing for respondents 1 to 3 agreed to provide the local address of respondents 1 to 3 at Tripunithura in Ernakulam to the learned counsel for the petitioner. Accordingly, we dispose of this Original Petition with the following directions,- - i) The 1st respondent shall be given interim custody of the children during the first ten days of April, 2023; provided he is available in Kerala; - ii) The 1st respondent, if available in Kerala, is allowed to have interim custody of the children from 10.00 a.m. to 4.00 p.m. on the second and fourth Saturdays as well as Sundays in February and March 2023; if he is not available in Kerala, respondent Nos.2 and 3 shall be allowed custody of the children from 10.00 a.m. to 4.00 p.m. on second and fourth Saturdays in February and March, 2023; iii) The 1st respondent is allowed to interact with the children through video call every day between 7.00 p.m. 11 O.P.(FC) No.48 of 2023 and 7.30 p.m.; and iv) After ten days of custody in April, the 1st respondent shall produce the children before the Family Court, Thrissur. After interacting with the parents and the children, the Family Court shall decide the interim custody as also the visitation rights thereafter. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) No.48 of 2023 ## **APPENDIX OF OP (FC) 48/2023** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF G.O.P. NO.1924/2022**| |---|---| |**Exhibit P2**|**A TRUE COPY OF I.A. NO.2/2022 IN**| ||**G.O.P.NO. 1924/2022**| |**Exhibit P3**|**A TRUE COPY OF OBJECTION FILED BY THE**| ||**PETITIONER IN I.A. NO.2/2022 IN**| ||**G.O.P.NO. 1924/2022**| |**Exhibit P4**|**A TRUE COPY OF REPORT FILED BY**| ||**CLINICAL PSYCHOLOGIST**| |**Exhibit P5**|**A TRUE COPY OF ORDER IN I.A. NO.2/2022**| ||**IN G.O.P.NO.1924/2022 DATED 17TH DAY**| ||**OF DECEMBER 2022 ON THE FILE OF FAMILY**| ||**COURT, THRISSUR**|