Arun Kumar.R vs Anuja V.R
2023 Latest Caselaw 4368 Ker

        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 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
                MAT.APPEAL NO. 870 OF 2022
   AGAINST THE JUDGMENT DATED 27.09.2022 IN O.P.(G&W)
     NO.1038 OF 2022 OF THE FAMILY COURT, NEDUMANGAD
APPELLANT/PETITIONER:

         ARUN KUMAR.R
         AGED 39 YEARS, S/O K.RAMACHANDRAN NAIR, USHAS,
         MUKKOLAKKAL, THEKKUMKARA, NEDUMANGAD P.O,
         THIRUVANANTHAPURAM, PIN - 695541.
         BY ADVS.
         R.SUNIL KUMAR
         A.SALINI LAL


RESPONDENT/RESPONDENT:

         ANUJA V.R.,
         AGED 36 YEARS, D/O VIJAYA KUMARI, TC 2/446,
         JYOTHIS, MUTHAYIMKONAM LANE, ULLOOR, MEDICAL
         COLLEGE P.O, THIRUVANANTHAPURAM PRESENTLY
         RESIDING AT FLAT NO: 1G, SOWPARNIKA
         APPARTMENTS, NEAR KIMS, KUMARAPURAM,
         POONTHI ROAD, ANAYARA, THIRUVANANTHAPURAM,
         PIN - 695029.
         BY ADVS.
         GOPAKUMAR R.THALIYAL
         T.S.RAJASENAN


     THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 12.04.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                    2
Mat.Appeal No.870 of 2022

                              JUDGMENT

P.G. Ajithkumar, J.

The appellant is the petitioner in O.P.(G&W) No.1038 of

2022 on the file of the Family Court, Nedumangad. As per the

judgment dated 27.09.2022, the Family Court dismissed that

original petition, which is under challenge in this appeal filed

under Section 19(1) of the Family Courts Act, 1984.

2. This appeal was admitted to file on 13.12.2022.

Pursuant to notice, the respondent entered appearance

through her learned counsel. On 21.12.2022, the appellant

has filed I.A.No.1 of 2022 seeking interim custody of the

minor, Vedhika A.Nair, aged 8 years now. He was granted

interim custody of the child on 24.12.2022 from 10.00 a.m. to

5.00 p.m.

3. When the appeal came up for consideration on

11.04.2023, we directed both parties to personally present

along with the minor child before Court at 10.15 a.m. on

12.04.2023. In terms of the said order, both parties

personally appeared in court along with the child today

(12.04.2023) at 10.15 a.m. We have interacted with both

Mat.Appeal No.870 of 2022

parties and the child. Thereafter, they were referred for

counselling at the Family Counselling Centre under the Kerala

High Court Legal Services committee. Both parties along with

the child, after counselling, appeared again at 3.00 p.m.

before us. We have interacted with them individually. We

perused the report of the Counsellor placed before us in a

sealed cover.

4. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondent.

5. The marriage of the appellant and the respondent

was solemnised on 16.10.2011. Vedhika A.Nair is their child.

Following estrangement in their marital relationship, their

marriage was dissolved. The appellant had filed O.P.(G&W)

No.881 of 2015 before the Family Court seeking to appoint

him the legal guardian of the child and to give him custody.

The parties had entered into a compromise and O.P.No.881 of

2015 was disposed of in terms of that compromise. The

appellant was allowed to have interaction with the child on 1 st

Saturday of every month between 10.00 a.m. and 4.00 p.m.

Mat.Appeal No.870 of 2022

There were allegations that the respondent was not complying

with the stipulations in the said compromise decree. The

appellant eventually has filed O.P.(G&W) No.1038 of 2022 in

order to get the arrangement regarding custody of the child

as per the decree in O.P.(G&W) No.881 of 2015 modified and

to allow him to have permanent custody of the child. The

respondent filed a detailed objection, wherein she refuted the

allegations raised by the appellant. The respondent took the

stand that there was no circumstance necessitating

modification of the compromise decree. It was further

contended that the intention behind filing the present original

petition was to harass the respondent and that in order to

safeguard the welfare of the child, her custody should be

retained by the respondent.

6. The Family Court at the trial examined the

appellant as PW1 and the respondent as DW1. Ext.A1, copy of

the birth certificate of the child, was marked also. After

hearing both sides, the Family Court took the view that there

was no need to vary the stipulations in the compromise

decree in O.P.(G&W) No.881 of 2015. The appellant besides

Mat.Appeal No.870 of 2022

claiming permanent custody of the child sought a decree of

injunction restraining the respondent from taking the child

away from the jurisdiction of the court and also from taking

the child abroad. That relief also was declined holding that

there was no reason to have such an apprehension.

7. The appellant is working in a company in a

responsible position. The respondent is a College Lecturer. The

child is now aged 8 years. She is studying in the III Standard.

It appears that the child has some extracurricular activities of

uploading programmes on YouTube. During interaction, the

child, pointing out those reasons, expressed her hesitancy to

go along with the father. She does not want to say away from

her mother. The respondent also stated that all throughout

the child has been with her and separating the child and

sending her along with the appellant for overnight custody

would result in mental trauma to the child.

8. The appellant stated that he wanted to take the

child to a few Temples for performing some offerings, which

he offered at the time of her birth and therefore he wanted

custody of the child for a few days. That apart, he claims that

Mat.Appeal No.870 of 2022

being the father, he is entitled to have permanent custody of

the child. Both the appellant and the respondent deposed

before the court almost in terms of their contentions set out in

their respective pleadings.

9. In Rohith Thammana Gowda v. State of

Karnataka & others [AIR 2022 SC 3511] the Apex Court

reiterated the law that the welfare of the children is of

paramount consideration in an enquiry regarding custody of

children. The Apex Court also explained as to how far desire

of the child has to be given importance and pleadings of the

parties require consideration. It was held as follows:

"8. At the outset we may state that in a 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. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations

Mat.Appeal No.870 of 2022

against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned'. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits." (underline supplied)

10. There is already a decree regarding custody of the

child, which was passed on the basis of the agreement entered

into between the parties. As per the said decree, custody of the

child has to be given to the appellant on 1 st Saturday of every

month from 10.00 a.m. to 4.00 p.m. The respondent, who is in

custody of the child, has no hesitation to comply with the said

direction. In the light of the stand taken by both parties, we are

of the view that the allegations set forth by them in their

respective pleadings and evidence do not require detailed

deliberation, as held by the Apex Court in the aforesaid decision.

Mat.Appeal No.870 of 2022

11. 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.

12. 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

Mat.Appeal No.870 of 2022

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

dealing with custody matters must while deciding issues of

custody clearly define the nature, manner and specifics of the

Mat.Appeal No.870 of 2022

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.

13. 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

welfare of the child must get precedence over the individual or

personal rights of the parents.

Mat.Appeal No.870 of 2022

14. The child is now aged 8 years. In the light of the

law laid down in the aforesaid decisions, the parents cannot

claim custody of the child purporting it to be their right.

Welfare of the child is of paramount consideration while

deciding custody. Of course, the child is not interested in

staying overnight along with the appellant. As held in Rohith

Thammana Gowda (supra), the wish or desire of the child

shall not be the sole guiding factor to decide the custody of a

child. Love and affection from both parents are required for

proper upbringing of the child. It is true that the appellant in

connection with his employment has to travel extensively, but

he is prepared to take care of the child. His parents are also

available to take care of the affairs of the child. We emphasise

that while giving such temporary custody, the parent,

grandparents and all concerned shall take extra care to

ensure child's comfort. They shall interact with the child with

love and affect, and avoid rebukings and insinuations against

the other parent, which will infuse or sense of insecurity and

aversion in the mind of the child. In such circumstances, we

are of the view that the decree in O.P.(G&W) No.881 of 2015

Mat.Appeal No.870 of 2022

shall not stand in the way of giving overnight custody of the

child to the appellant.

15. In Rosy Jacob v. Jacob A. Chakramakkal

[(1973) 1 SCC 840] the Apex Court held that all orders

relating to the custody of the minor wards from their very

nature must be considered to be temporary orders made in

the existing circumstances. With the changed conditions and

circumstances, including the passage of time, the Court is

entitled to vary such orders if such variation is considered to

be in the interest of the welfare of the wards. Orders relating

to custody of wards even when based on consent are liable to

be varied by the Court if the welfare of the wards demands

variation.

16. We are, therefore, of the view that the judgment

under challenge requires interference. The appellant is

entitled to get interim custody of the child on the 1 st and 3rd

Saturdays and following Sundays during the period of school

vacations and 1st Saturday and Sunday during Onam and

Christmas holidays. During other periods, the stipulations in

decree O.P.(G&W) No.881 of 2015 have to be followed.

Mat.Appeal No.870 of 2022

17. Accordingly, this appeal is disposed of by modifying

the judgment dated 27.09.2022 in O.P.(G&W) No.1038 of

2022 and the custody of the child Vedhika A.Nair shall be

given to the appellant,-

(i) from 10.00 a.m. on the 1st and 3rd Saturdays till 4.00 p.m. on the following Sunday during school vacation, namely, in April and May; and

(ii) from 10.00 a.m. on the 1st Saturday till 4.00 p.m. on the following Sunday during the Onam and Christmas holidays.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

Mat.Appeal No.870 of 2022

APPENDIX OF MAT.APPEAL 870/2022

RESPONDENT ANNEXURES ANNEXURE R1(A) TRUE COPY OF THE JUDGMENT IN O.P. NO.

                     881/2015   OF    THE   FAMILY  COURT,
                     NEDUMANGAD DATED 23.05.2016.
ANNEXURE R1(B)       TRUE COPY OF THE ORDER PASSED BY THE
                     FAMILY COURT, NEDUMANGAD IN I.A NO.
                     1652/2016 IN O.P. NO. 881/2015 DATED
                     25.04.2017
ANNEXURE R1(C)       TRUE COPY OF THE JUDGMENT PASSED BY
                     THIS HONORABLE COURT IN O.P (F.C) NO.
                     711/2017 DATED 20.12.2017
ANNEXURE R1(D)       TRUE COPY OF THE ORDER PASSED BY THIS
                     HONORABLE COURT IN I.A NO. 607/2018 IN
                     O.P    (F.C)   NO.    711/2017   DATED
                     04.04.2018
ANNEXURE R1(E)       TRUE COPY OF I.A NO.1241/2018 IN O.P
                     (G&W) NO.932 OF 2018 FILED BY THE
                     PETITIONER BEFORE THE FAMILY COURT,
                     THIRUVANANTHAPURAM.
ANNEXURE R1(F)       TRUE COPY OF ORDER IN I.A NO.1241/
                     2018 IN O.P (G&W) NO.932 OF 2018
                     PASSED    BY    THE    FAMILY    COURT,

THIRUVANANTHAPURAM DATED 04.-01.2019. ANNEXURE R1(G) TRUE COPY OF THE COMMON JUDGMENT PASSED BY THIS HONORABLE COURT IN O.P (F.C) NO. 131/2019 AND O.P (F.C) NO.171/2019 DATED 10.10.2019.

ANNEXURE R1(H) TRUE COPY OF THE ORDER PASSED BY THIS COURT IN R.P. NOS.152/2021 AND 331/2021 DATED 28.07.2021