Renjana Mathew vs Tony Cherian
2023 Latest Caselaw 2410 Ker

         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 24TH DAY OF FEBRUARY 2023/5TH PHALGUNA, 1944
                   OP (FC) NO.565 OF 2022
AGAINST EXT.P8 ORDER: ORDER DATED 08.08.2022 IN I.A.NO.1 OF
 2021 IN O.P.NO.1184 OF 2021 ON THE FILES OF THE COURT OF
       THE JUDGE FAMILY COURT KOTTAYAM AT ETTUMANOOR
PETITIONER/RESPONDENT/RESPONDENT:

         RENJANA MATHEW
         AGED 29 YEARS
         DAUGHTER OF SRI. C.M. MATHEW CHAKKITTAMURIYIL
         HOUSE, INDUSTRIAL NAGAR P.O., CHETHIPUZHA
         VILLAGE, CHANGANACHERRY TALUK,
         KOTTAYAM DISTRICT, KERALA, PIN - 686106
         BY ADVS.
         LUKE J CHIRAYIL
         M.G.SREEJITH

RESPONDENT/PETITIONER/PETITIONER:
          TONY CHERIAN
          AGED 32 YEARS
          MUKKATTU NELLUVELIL HOUSE, INDUSTRIAL NAGAR P.O.,
          CHETHIPUZHA VILLAGE, CHANGANACHERRY TALUK,
          KOTTAYAM DISTRICT, KERALA, PIN - 686106
         BY ADVS.
         JOMY GEORGE GEORGE
         R.PADMARAJ(K/191/1989)
         M.J.BENNY(K/1145/2003)
         CHITRA N. DAS(K/001228/2018)
         RISHAB S.(K/000757/2019)
         FATHIMA AFEEDA P.(K/001993/2022)
         R.AJITH KUMAR [V.K.EDOM](K/000629/2016)
     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                      2
O.P.(FC) No.565 of 2022



                             JUDGMENT

P.G.Ajithkumar, J.

O.P(G&W) No.1184 of 2021 was filed before the Family

Court, Kottayam at Ettumanoor by the respondent seeking

custody of his minor son, Heidan Sach Thomas born on

21.06.2018. He has filed I.A No.1 of 2021 for getting interim

custody of the child. That interlocutory application was

allowed by the Family Court as per the order dated

08.08.2022 thereby the respondent was allowed to interact

with the child every alternate day between 4.00 p.m and

6.00 p.m through video call and interim custody of the child

during vacation. Ext.P8 is the said order. The petitioner,

aggrieved of that order has filed this original petition under

Article 227 of the Constitution of India.

2. On 29.09.2022, notice was directed to be served

on the respondent and further proceedings in O.P.No.1184 of

2021 on the file of the Family Court, Kottayam at Ettumanoor

pursuant to Ext.P8 order was stayed for a period of one

month. Respondent entered appearance and filed a counter

O.P.(FC) No.565 of 2022

affidavit producing therewith Ext.R1(a).

3. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent.

4. Marriage between the petitioner and the

respondent was solemnised on 22.05.2017. Their marital

relationship was strained resulting in filing O.P.No.1166 of

2021 by the respondent seeking dissolution of marriage. The

petitioner filed O.P.No.419 of 2022 for a decree of return of

gold ornaments and realisation of money. I.A No.1 of 2021

filed by the respondent in O.P.(G&W) No.1184 of 2021 was

resisted by the petitioner. The Family Court however allowed

the respondent to have interim custody of the child during

vacation and right of interaction through video call every

alternate day. The petitioner would contend that the character

of the respondent is such that he cannot be given custody of

the child. Petitioner has produced Exts.P4, P5 and P7 which

are copies of First Information Reports to show that the

respondent was involved in serious crimes. In that context

O.P.(FC) No.565 of 2022

she contend that to fortify her contention that the respondent

is disentitled to claim custody of the child.

5. The learned counsel appearing for the respondent

would submit that those crimes particularly, the one

pertaining to Ext.P4, were manipulated ones and the

respondent did not commit any such offence. The learned

counsel appearing for the respondent also pointed out that

the petitioner has filed a petition before the Apex Court for

transferring the petitions for divorce as well as custody of the

child to a court at Bangalore and as per Ext.R1(a) order the

Apex court stayed the proceedings in those petitions.

Ext.R1(a) however does not stay the proceedings in the

custody matter.

6. True, there are allegations that the respondent

involved in criminal cases including the one with allegation of

commission of rape. The learned counsel appearing for the

petitioner would submit that the stand taken by the

respondent while he sought bail in Crime No.1456 of 2022 of

Kottayam police station was that the alleged act of sexual

O.P.(FC) No.565 of 2022

intercourse was a consensual one, whereas in the counter

affidavit filed in this Court, he denied very occurrence of such

an incident. The learned counsel for the petitioner would

contend that the said inconsistent stand itself is enough to

deny him custody of the child.

7. Investigation into the offences allegedly committed

by the respondent is going on. At this stage, there cannot be

a finding that the respondent is guilty and he is ineligible to

claim custody of the child. Marriage between the petitioner

and the respondent still persists. The child is aged only 4½

years. In such circumstances, the child cannot be completely

detached from the respondent-father. It is the right of every

child to have company of both the father and mother.

8. 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

O.P.(FC) No.565 of 2022

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.

9. 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

O.P.(FC) No.565 of 2022

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

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.

O.P.(FC) No.565 of 2022

10. 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.

11. In the light of the law laid down in the aforesaid

decisions, the respondent legitimately can claim to have

interaction with the child. Considering the allegation levelled

against the respondent and the circumstances borne out from

O.P.(FC) No.565 of 2022

the materials on record, we are of the view that the

respondent cannot be given overnight custody at present.

Therefore Ext.P8 order is modified to the extent that instead

of giving interim custody of the child to the respondent-father

during vacation, he shall be allowed to have interim custody

of the child on every 1st and 3rd Saturday between 10.00 a.m

and 2.00 p.m. Since both parents are residents of

Changanassery, interim custody as aforesaid shall be given in

the presence of the Chief Ministerial Officer of the Munsiff's

Court, Changanassery, who shall ensure that the child is

handed over and given back peacefully.

Ext.P8 order is modified to that extent and this original

petition is disposed of accordingly.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE PV

O.P.(FC) No.565 of 2022

APPENDIX OF OP (FC) 565/2022

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PETITION DATED 04.10.2021 NUMBERED AS O.P. (G&W) NO. 1184/2021 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR Exhibit P2 TRUE COPY OF THE PETITION DATED 04.10.2021 NUMBERED AS I.A. NO. 1/2021 IN O.P. (G&W) NO. 1184/2021 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR Exhibit P3 TRUE COPY OF THE OBJECTION DATED 25.07.2022 FILED AGAINST AS I.A. NO.

1/2021 IN O.P. (G&W) NO. 1184/2021 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR Exhibit P4 TRUE COPY OF THE F.I.R DATED 06.08.2022 IN CRIME NUMBER NO.1456 OF 2022 ON THE FILES OF THE KOTTAYAM EAST POLICE STATION, KOTTAYAM DISTRICT Exhibit P5 TRUE COPY OF THE F.I.R DATED 19.06.2021 IN CRIME NUMBER 1148 OF 2021 ON THE FILES OF THE CHANGANASSERRY POLICE STATION, KOTTAYAM DISTRICT Exhibit P6 TRUE COPY OF THE COMPLAINT DATED 06.08.2022 IN UNNUMBERED CRL.MP.IN C.C.NO.1456 OF 2022 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE - 1 COURT AT KOTTAYAM Exhibit P7 TRUE COPY OF THE DEPOSITION DATED

O.P.(FC) No.565 of 2022

03.07.2021 OF THE RESPONDENT HEREIN IN CRIME NUMBER 1148 OF 2021 OF CHANGANACHERRY POLICE STATION, KOTTAYAM DISTRICT Exhibit P8 TRUE COPY OF THE ORDER DATED 08.08.2022 IN I.A. NO. 1 OF 2021 IN O.P. NO. 1184 OF 2021 ON THE FILES OF THE COURT OF THE JUDGE FAMILY COURT KOTTAYAM AT ETTUMANOOR Exhibit P9 TRUE COPY OF THE PETITION DATED 08.02.2022 NUMBERED AS O.P. NO. 419 OF 2022 ON THE FILES OF THE HONORABLE FAMILY COURT ETTUMANOOR Exhibit P10 TRUE COPY OF THE PETITION DATED 23.09.2021 NUMBERED AS O.P. (DIV) NO. 1166 OF 2021 ON THE FILES OF THE HONORABLE FAMILY COURT KOTTAYAM AT ETTUMANOOR Exhibit P11 TRUE COPY OF THE ORDER DATED 23.08.2022 IN CRIMINAL M.P. NO.

1799/2022 ON THE FILES OF THE HONORABLE COURT OF SESSION, KOTTAYAM RESPONDENT'S EXHIBITS Exhibit -R1(a) True copy of the interim order of the Apex Court in transfer petition(s) (civil) No(s). 1532-1533/2022