Muhammed Kunju vs Jahanara Basheer
2021 Latest Caselaw 1978 Ker

Mat.Appeal.No.326 OF 2019

                               1

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                               &

            THE HONOURABLE MR.JUSTICE C.S.DIAS

 TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                 Mat.Appeal.No.326 OF 2019

AGAINST THE JUDGMENT IN OP(GW) 260/2017 DATED 18-03-2019 OF
                  FAMILY COURT, ALAPPUZHA


APPELLANT/PETITIONER:

           MUHAMMED KUNJU
           AGED 38 YEARS
           S/O.ABDUL KHADER KUNJU, KOMALASSERIL VEEDU,
           AUGUSTIAN ROAD, ERNAKULAM

           BY ADVS.
           SRI.S.SHANAVAS KHAN
           SMT.S.INDU

RESPONDENT/S:

           JAHANARA BASHEER
           AGED 26 YEARS
           W/O.MUHAMMED KUNJU, ROSHNARA MANZIL,
           VALANJAVAZHI VADANAM.P.O., ALAPPUZHA-688001

           R1 BY ADV. SRI.B.PRAMOD

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal.No.326 OF 2019

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                          JUDGMENT

C.S.DIAS, J.

The appellant had filed O.P.(G&W)No.260/2017

before the Family Court, Alappuzha seeking to declare

him as the legal guardian of his minor daughter

'Rafa Fathima' who was three years in 2017. The

respondent in the appeal was the respondent in the

original petition. The parties are for the sake of

convenience, referred to as per their status in the

original petition.

2. The facts in a net-shell in the original

petition are that the petitioner and the respondent

are Muslims by religion. Their Nikah was

solemnised on 13.1.2013. The child ' Rafa Fathima'

was born in the wedlock. Due to the strained marital

relationship, they are living separately. The

respondent had filed M.C No.27/2015 seeking

maintenance for herself and her child. The Mat.Appeal.No.326 OF 2019

maintenance case was allowed as per the terms of

compromise arrived at between the parties. As per

clause (N) of the compromise, the petitioner was

allowed interim custody of the child on the first

Saturday of alternate months between 3 p.m and 5

p.m. at the Family Court premises. The respondent

violated the terms of the compromise. On 17.4.2016,

even though the interim custody of the child was

entrusted to the petitioner, the respondent and her

relatives forcefully took away the child. A criminal

complaint was lodged with the Police. The petitioner

has sufficient financial resources to educate and look

after the welfare of the child. Hence, he is entitled

for a declaration that he is a natural guardian of the

child. The petitioner is also entitled for custody of

the child on first Saturday and Sunday of every

month from 10.00 a.m to 5 p.m, including overnight

custody and also custody during Onam, Christmas and

mid-summer vacations.

Mat.Appeal.No.326 OF 2019

3. The respondent filed a written objection,

inter alia, denying the assertions in the original

petition. According to the respondent, the petitioner

abused the respondent and her parents. He and his

relatives manhandled the respondent and her

relatives. Consequently, a crime was registered by the

Police against the petitioner and his relatives for

various offences under the Indian Penal Code. If the

custody of the child is handed over to the petitioner,

the child's life would be endangered. As per the

terms of the compromise in MC 27/2015, the

petitioner is paying Rs.20,000/- per month towards

maintenance of the respondent and her child. The

respondent is working as a Homoeo Medical

Practitioner. She has sufficient financial resources

to educate and to look after the welfare of the child.

The petitioner's claim for permanent custody of the

child cannot be considered in view of the bar under

the Mohammedan Law. Therefore the petition may Mat.Appeal.No.326 OF 2019

be dismissed.

4. The petitioner was examined as PW1 and

Exts.A1 to A9 were marked through him. The

respondent was examined as RW1 and Exts.B1 to B8

were marked through her.

5. The Family Court, after evaluating the

pleadings and evidence, by the impugned judgment

allowed the original petition, in part, by declaring the

petitioner as the natural guardian of the child 'Rafa

Fathima'. The petitioner was also granted interim

custody of the child between 11.30 a.m and 2.30 p.m

on first Saturday of every month. After the expiry of

six months from the date of order, the petitioner was

allowed to have custody of the child from 11.30 a.m

to 3.30 p.m on first Saturday of every month.

Further, after the expiry of one year from the date of

order, the petitioner was permitted to have three

days custody during Onam and X'mas holidays and

ten days during mid-summer vacation. However, Mat.Appeal.No.326 OF 2019

overnight custody was not permitted.

6. It is aggrieved by the clauses (b), (e) to (h),

(k) and (l) to (m) of the impugned judgment that this

appeal is filed.

7. Heard Sri.S.Shanavas Khan, the learned

counsel appearing for the appellant and

Sri.V.Pramod, the learned counsel appearing for

the respondent.

8. It has been brought to our notice that during

the pendency of the original petition, the respondent

had approached this Court against the interim order

passed by the Family Court. This Court by its

judgment dated 20.6.2018 in O.P(FC) No.318/2018

permitted the appellant to have interim custody of the

child for a period of four hours at a stretch on the

first Saturday of every month.

9. The sole question that emerges for

consideration in this appeal is whether there is any

error or illegality in condition Nos. (b) (e) to (h), (k) Mat.Appeal.No.326 OF 2019

and (l) to (m) of the impugned judgment.

10. The marriage as well as the paternity of the

child is not disputed. The Family Court after

considering the pleadings and materials on record,

has declared that the petitioner as the legal guardian

of his daughter 'Rafa Fathima'. The respondent has

not assailed the said declaration.

11. The Hon'ble Supreme Court has in Yashita

Sahu v. State of Rajasthan & Others [(2020)

SCC Online SC 50] , after considering a plethora

of earlier precedents held as follows:

"17. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If 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.

18. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows Mat.Appeal.No.326 OF 2019

that, 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 the custody of the child. The court must therefore be very vary of what is said by each of the spouses.

19. A child, especially a child of tender years requires the love affection, company, 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 parent to the other. Every separation, 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 the 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 the custody matters must while deciding issues of custody clearly define the nature, manner and specifies of the visitation rights.

Mat.Appeal.No.326 OF 2019

20. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the 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.

21. Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks, and in such cases the visitation rights must be given over long weekends, breaks and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody.

12. In light of the categoric declaration of law by

the Hon'ble Supreme Court in Yashita Sahu

(supra), it is the human right of the child to have the

love and affection of both parents and courts must

pass orders ensuring that the child is not deprived of Mat.Appeal.No.326 OF 2019

love and affection and the company of both his

parents.

13. Admittedly, the appellant/petitioner is

working in Saudi Arabia. It would not be possible for

him to have custody of the child on monthly basis as

directed by the Family Court. Therefore, when the

appellant is abroad, he is entitled to have contact

rights with his child so that he can familiarise with

the child and their bond can be built up over the

passage of time. Thus, we direct the respondent to

give access to the child ' Rafa Fathima' to

converse with the appellant on every Friday evening

between 7.30 p.m and 8 p.m through Video

conferencing/WhatsApp/Zoom or such other virtual

platform. In addition to the said condition, as and

when the appellant comes down to India, he would be

entitled to have overnight custody of the child on one

Saturday in every month from 5 p.m on Friday to 5

p.m. The venue of exchange of the child shall be the Mat.Appeal.No.326 OF 2019

premises of the Family Court, Alappuzha. The

appellant shall intimate to the respondent in advance,

through WhatsApp/Zoom or other social media

platform, regarding his proposed visit to India. The

respondent shall on receipt of the information, hand

over the interim custody of child from such Friday

to Saturday as directed in this judgment. If the

aforesaid arrangements are implemented, we are

certain that the child would develop a bonding with

the appellant which would be conducive to the

paramount welfare and best interest of the child,

which is necessary for the overall development and

best interest of the child.

14. In view of the above direction, we also

direct the respondent to hand over the interim

custody of the child for a period of 10 days during

the mid-summer vacation, 3 days each during

Christmas and Onam vacations of the child, when the

appellant is in India, with overnight custody. We Mat.Appeal.No.326 OF 2019

accordingly modify condition Nos. (b), (e) to (h), (k)

and (l) to (m) in the impugned judgment.

In the result, the appeal is allowed, in part, by

modifying the impugned judgment ordered above and

by directing the respondent to give interim custody of

the child 'Rafa Fathima' to the appellant from 5 p.m

on one Friday to 5 p.m to ensuing Saturday during

each month. Similarly, the respondent shall also

provide contact rights to the child to converse with

the appellant on every Friday between 7.30 p.m to 8

p.m for half an hour through video conferencing

WhatsApp/Zoom or such other virtual platform. The

respondent shall also grant interim custody of the

child for ten days during the child's school summer

vacation and 3 days each during the child's Onam

and Christmas vacations, with overnight custody, if

the appellant is in India during the said period. The

venue of exchange of custody shall be at the premises

of the Family Court. The appellant shall not remove Mat.Appeal.No.326 OF 2019

the child from the State of Kerala, without prior

permission of the Family Court.

With the above modifications, the appeal is

disposed of.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

ma/20.1.2021                     C.S.DIAS, JUDGE

                       /True copy/