Don Paul vs Tisa Don
2023 Latest Caselaw 299 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 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                   MAT.APPEAL NO. 216 OF 2019
   AGAINST THE JUDGMENT AND DECREE DATED 30.01.2019 IN
  O.P.NO.810 OF 2015 ON THE FILES OF THE FAMILY COURT,
                     KOTTAYAM AT ETTUMANOOR
APPELLANT/PETITIONER:

            DON PAUL
            AGED 37 YEARS,S/O.PAUL PAUL, THENGUMPALLY
            HOUSE, MANJOOR.P.O, KOTHANALLOOR VILLAGE,
            KOTTAYAM-686603.
            BY ADVS.
            ABDUL JALEEL.A
            M.A.SULFIA


RESPONDENT/RESPONDENT:

            TISA DON
            AGED 31 YEARS,D/O.GEORGE KURIAKOSE,
            PALACKAL HOUSE, BUS STAND ROAD, VAIKOM.P.O,
            KOTTAYAM DISTRICT-686141.
            BY ADVS.
            SRI.ABRAHAM P.GEORGE
            SMT.M.SANTHY



     THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL
HEARING     ON   11.01.2023,    THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                   2
Mat.Appeal No.216 of 2019


                             JUDGMENT

P.G.Ajithkumar, J.

The appellant filed O.P.No.810 of 2015 before the Family

Court, Kottayam at Ettumanoor seeking custody of his child,

Elena Maria Don, aged 7 years. The Family Court as per the

judgment dated 30.01.2019 dismissed the O.P. However, the

appellant was allowed to have visitation right. The appellant

aggrieved of that judgment has preferred this appeal under

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

2. This appeal was admitted on 18.03.2019. On the

applications of the appellant, various orders were passed by this

Court allowing him interim custody of the child during Onam and

Christmas and vacation periods, pending this appeal.

3. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the respondent.

4. Besides O.P.No.810 of 2015 there were two other

original petitions, which were filed by the respondent. She filed

O.P.No.1281 of 2015 for a decree for return of gold ornaments

and realisation of money. She also filed O.P.No.1032 of 2015

seeking a decree of dissolution of marriage. Those cases were

Mat.Appeal No.216 of 2019

tried jointly. PWs.1 and 2 were examined and Exts.A1 to A14

were marked on the side of the petitioner. RW1 was examined

and Exts.B1 and B2 were marked on the side of the respondent.

(In fact evidence in O.P.No.810 of 2015 was initially recorded

and later on only a joint trial was ordered. Remaining evidence

was recorded subsequently.) The Family Court after considering

the evidence on record disposed the original petitions as per a

common judgment dated 30.01.2010.

5. The respondent is a Dental Doctor. She conducts a

dental clinic. It is beyond dispute that there exists marital

disharmony which resulted in the parties living separate. The

respondent left the marital home and now resides along with the

child in her parental home. The contention of the appellant is

that the respondent was not taking care of the child and he with

the assistance of his mother will be able to take care of the

child. The respondent, on the other hand, contended that she

had to leave the marital home as a result of the cruelty meted

out on her by the appellant. Even the appellant and his brother

were quarrelling each other. It was her contention that the

atmosphere in the house of the appellant was not congenial and

Mat.Appeal No.216 of 2019

not helpful for proper upbringing of the child. Further, it was

contended that the appellant did not have permanent income

having he unemployed, and it was unsafe to entrust custody of

the child with him.

6. The Family Court taking into account the fact that

being a girl child, the mother is best suited to look after the child

atleast during his tender age and the circumstances appeared in

evidence took the view that the custody of the child shall be with

the respondent. However, the appellant was allowed to have

visitation right of the child on his request. During the pendency

of this appeal, the child was given in interim custody of the

appellant on several occasions. There has not been any

complaint with respect to such custody.

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

Mat.Appeal No.216 of 2019

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.

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

Mat.Appeal No.216 of 2019

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.

Mat.Appeal No.216 of 2019

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

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. Being a girl child now aged 7 years, it is apposite that

for her welfare, she has to be with the mother. It is true that the

appellant relying on Exts.A2, A6 and A8 to A11 contended that

the child was interacting with him very happily, and therefore

Mat.Appeal No.216 of 2019

the interest of the child would be best served by placing her in

the company of the appellant. Being the father, the child

naturally would be affectionate to the appellant. That cannot be

the criteria to decide what is in the best interest of the child.

Similarly, the financial stability of the spouses should not be the

decisive factor. What counts is in whose custody the welfare of

the child can be ensured.

11. The child being a girl of aged 7 years, she shall be in

the custody of the mother. No doubt, the father shall be afforded

with sufficient opportunity to interact with the child, which will

enable to maintain an emotional connect between them. As held

by the Apex Court in the aforesaid decision, love and affection

from both parents are absolutely necessary for the proper

upbringing of the child. In order to inculcate social and cultural

values in the child also, the care and protection from both

parents are necessary. Taking all such aspects into account, we

find that the order of the Family Court allowing the respondent

to retain custody of the child is not liable to be interfered with.

However, there shall be a direction regarding the entitlement of

the appellant to have interim custody of the child. We direct that

Mat.Appeal No.216 of 2019

the appellant shall be allowed to have interaction with the child

on every Saturday between 10.00 a.m. and 3.00 p.m. The

appellant shall be given custody of the child for five days each

during Onam and Christmas holidays. During the summer

vacation, he shall be allowed to have custody of the child for 15

days. Periods of such custody shall be during the first half and

second half alternately. The custody shall be given and taken

back in the premises of the St.George Church,

Thalayolaparambu. The appeal is disposed of accordingly.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr