Kerala High Court
Harsha Lal vs Nadarajan on 18 January, 2023
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 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
OP (FC) NO.692 OF 2022
AGAINST THE ORDER IN I.A. NO.6 OF 2022 IN O.P(G&W) 3 OF 2022
OF FAMILY COURT, CHAVARA DATED 24.08.2022
PETITIONER/RESPONDENT IN OP:
HARSHA LAL
AGED 29 YEARS
D/O.LAL, MALINI, ADINADU NORTH,
KARUNAGAPPALLY, KOLLAM 690542, PIN - 690542
BY ADVS.
O.A.NURIYA
NEBIL NIZAR
REVATHY P. MANOHARAN
ASHEEK ANTONY
RESPONDENT/PETITIONERS IN OP:
1 NADARAJAN
AGED 57 YEARS
S/O.VASUDEVAN,
THANAL, VATHIKULAM,
THEKKEKARA, MAVELIKKARA,
ALAPPUZHA - 690101.
2 REMA
AGED 51 YEARS
W/O.NADARAJAN,
THANAL, VATHIKULAM,
2
O.P.(FC) No.692 of 2022
THEKKEKARA, MAVELIKKARA,
ALAPPUZHA 690101
BY ADVS.
Suresh Kumar M.T.
P.R.JAYASANKAR(K/1637/2003)
DARSAN SOMANATH(K/150/2007)
MANJUSHA K(K/000191/2018)
SREELAKSHMI SABU(K/000200/2020)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
O.P.(FC) No.692 of 2022
JUDGMENT
P.G.Ajithkumar, J.
Petitioner is the mother of a girl child, Naira Harsha, now
aged one year and ten months. The respondents filed O.P.
(G&W) No.3 of 2022 before the Family Court, Chavara. They
are the grandparents of the child. They filed I.A. No.6 of 2022
in that O.P for getting interim custody of the child. Father of
the child is now abroad. The Family Court as per Ext.P4 order
dated 24.08.2022, allowed the respondents to have interim
custody of the child on the 3rd Saturday of every month from
11.00 am till 3.00 pm from the premises of the Family Court.
The petitioner filed this original petition under Article 227 of
the Constitution of India seeking to set aside the said order.
2. On receipt of the notice issued on admission, the
respondents entered appearance through their learned
counsel.
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondents.
O.P.(FC) No.692 of 2022
4. 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.
5. In Yashita Sahu (supra) the Apex Court noticed
that a child, especially a child of tender years requires the
O.P.(FC) No.692 of 2022
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
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
O.P.(FC) No.692 of 2022
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.
6. 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
O.P.(FC) No.692 of 2022
welfare of the child must get precedence over the individual or
personal rights of the parents.
7. The father of the child is abroad. The child is in the
custody of the petitioner-mother. Paternal grandparents want
to have interaction with the child periodically. The child is now
aged only one year and 10 months. The Family Court after
considering the rival contentions deemed it appropriate to
allow the respondents to interact with the child for four hours
once in a month. In the absence of the father in station, the
paternal grandparents want to maintain their emotional
connection with the child. The Family Court, relying on the
principle laid down by this court in Biji and another v. Vijil
and others [2016 (2) KLT 673] held that the grandparents
should be given an opportunity to interact with the child. We
find no reason to find fault with the said finding. Going by the
principle laid down by the Apex Court in the aforementioned
decisions also the view taken by the Family Court is
appropriate in the circumstances of the case. We, in exercise
of the powers under Article 227 of the Constitution of India
O.P.(FC) No.692 of 2022
are not sitting in appeal on that order. In the absence of any
patent illegality the said order is not liable to be set aside.
However, considering the tender age of the child, the time for
interaction is reduced so as to avoid possible inconvenience to
the child.
This original petition is accordingly disposed of and
Ext.P4, the order dated 24.08.2022 in I.A. No. 6 of 2022 in
O.P.(G&W) No.3 of 2022, is modified to the extent that the
interaction by the respondents with the child shall be from
11.00 am till 2.00 pm. All other conditions shall be as in
Ext.P4.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
O.P.(FC) No.692 of 2022
APPENDIX OF OP (FC) 692/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION OP
(G&W) NO. 3 OF 2022 FILED BEFORE
FAMILY COURT, CHAVARA 06.01.2022
Exhibit P2 TRUE COPY OF THE I.A NO.6 OF 2022
DATED 10.06.2022
Exhibit P3 TRUE COPY OF THE OBJECTION FILED BY
THE PETITIONER IN I A. NO. 6 OF 2022
IN OP(G&W) NO. 3 OF 2022
OF 2022 IN OP(G&W) 3 OF 2022 DATED
24.08.2022
