Ratheesh C.C vs Vijaya.V F
2023 Latest Caselaw 2679 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 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
                  OP (FC) NO. 525 OF 2022
    AGAINST THE ORDER 29.08.2022 IN I.A.NO.2 OF 2022 IN
       G.O.P.NO.116 OF 2022 OF FAMILY COURT,THRISSUR
PETITIONER:

          RATHEESH C.C
          AGED 41 YEARS
          S/O CHANDRANMOHAN, CHEKKITHARA HOUSE, KARAKKUNNU
          DESOM. THRIKKALANGOD POST. MANJERI. MALAPPURAM
          DISTRICT. PIN CODE ., PIN - 670123
          BY ADVS.
          K.M.MUHAMMED HUSSAIN
          T.K.VIPINDAS
          K.V.SREE VINAYAKAN


RESPONDENT:

          VIJAYA.V F.
          AGED 37 YEARS
          D/O FALGUNAN. KONTHIPARAMBUVELI HOUSE,
          MARARIKULAM DESAM. ALAPPUZHA DISTRICT. PRESENTLY
          RESIDING AT CHEKKITHARA HOUSE, ENGANDIYUR P O,
          CHAVAKKAD TALUK. THRISSUR DISTRICT. PIN CODE, PIN
          - 680615
          BY ADVS.
          V.V.JOY
          LEKSHMI P. NAIR(K/001011/2017)


THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                  2
O.P.(FC)No.525 of 2022


                           JUDGMENT

Anil K. Narendran, J.

The petitioner is the respondent-father in G.O.P.No.116 of

2022 on the file of the Family Court, Thrissur, which is one filed

by the respondent herein-mother, seeking custody of the minor

children namely, Sayangadami aged 13 years and Sairam aged

11 years. In that original petition, the respondent filed I.A.No.2

of 2022, an application for interim custody of the minor children.

The petitioner-father filed objection, opposing the relief sought

for in that interlocutory application. After considering the rival

contentions, the Family Court by Ext.P5 order dated 29.08.2022

allowed that interlocutory application and the petitioner-father

was directed to handover interim custody of both minor children

to the respondent-mother at 10.00 a.m. on 05.09.2022. As per

that order, the father shall be entitled to get custody of both the

minor children from 10.00 a.m. on every second Saturday, till

4.00 p.m. on the following Sunday, and also during first five days

of Onam and Christmas vacations (except the Onam vacation of

2022) and also during first ten days of April and May in the

summer vacations. Feeling aggrieved by the said order of the

Family Court, the petitioner-father is before this Court in this

O.P.(FC)No.525 of 2022

original petition, invoking the supervisory jurisdiction of this Court

under Article 227 of the Constitution of India.

2. On 13.09.2022, when this original petition came up for

admission, this Court admitted the matter on file and issued

notice by special messenger to the respondent. This Court

granted an interim stay of operation of Ext.P5 order till

19.09.2022.

3. On 23.12.2022, in I.A.No.2 of 2022, this Court granted

an interim order regarding interim custody of the minor children

during Christmas vacation of 2022, which reads thus;

"As agreed by the learned counsel on both sides, there will be an interim order granting interim custody of the minor children during the Christmas vacation to the petitioner, who shall take custody of the minor children on 25.12.2022 at 11.00 a.m., from the premises of the Family Court, Thrissur. The petitioner shall return the children on 31.12.2022 at 11.00 a.m., at the very same place."

4. The respondent-mother has filed I.A.No.1 of 2022,

seeking an order to vacate the interim order granted on

13.09.2022.

5. Today, when the matter is taken up for consideration,

the petitioner-father has filed a counter affidavit in I.A.No.1 of

2022.

O.P.(FC)No.525 of 2022

6. Heard the learned counsel for the petitioner-father and

also the learned counsel for the respondent-mother.

7. The issue that requires consideration in this original

petition is as to whether any interference is warranted on Ext.P5

order of the Family Court dated 29.08.2022 in I.A.No.2 of 2022

in G.O.P.No.116 of 2022, whereby the interim custody of the

minor children is granted to the mother, subject to the overnight

custody granted to the petitioner-father from 10.00 a.m. on every

second Saturday, till 4.00 p.m. on the following Sunday, for five

days during Onam and Christmas vacations and the first ten days

of April and May, during summer vacations.

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 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

O.P.(FC)No.525 of 2022

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 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

O.P.(FC)No.525 of 2022

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.

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. The court cannot accept the submission that, while

applying the welfare principle, the rights of the mother or father

O.P.(FC)No.525 of 2022

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. A reading of Ext.P5 order dated 29.08.2022 of the

Family Court would show that, before granting interim custody of

the minor children to the respondent-mother, subject to the

overnight custody granted to the petitioner-father on the days

specified therein, the Family Court had occasion to interact with

the minor children. Considering the facts and circumstances of

the case, as borne out from the materials on record, the

reasoning of the Family Court in Ext.P5 order cannot be said to

be either perverse or patently illegal. It cannot also be said that

while passing such an order, the Family Court committed a

material irregularity, by ignoring the principle laid down in the

decisions referred to supra.

12. Article 227 of the Constitution of India deals with

power of superintendence over all courts by the High Court. Under

clause (1) of Article 227 of the Constitution, every High Court

shall have superintendence over all courts and tribunals

throughout the territories in relation to which it exercises

jurisdiction.

O.P.(FC)No.525 of 2022

13. In Shalini Shyam Shetty v. Rajendra Shankar

Patil [(2010) 8 SCC 329] the Apex Court, while analysing the

scope and ambit of the power of superintendence under Article

227 of the Constitution, held that the object of superintendence,

both administrative and judicial, is to maintain efficiency, smooth

and orderly functioning of the entire machinery of justice in such

a way as it does not bring it into any disrepute. The power of

interference under Article 227 is to be kept to the minimum to

ensure that the wheel of justice does not come to a halt and the

fountain of justice remains pure and unpolluted in order to

maintain public confidence in the functioning of the tribunals and

courts subordinate to the High Court.

14. In Jai Singh v. Municipal Corporation of Delhi

[(2010) 9 SCC 385], while considering the nature and scope of

the powers under Article 227 of the Constitution of India, the

Apex Court held that, undoubtedly the High Court, under Article

227 of the Constitution, has the jurisdiction to ensure that all

subordinate courts, as well as statutory or quasi-judicial tribunals

exercise the powers vested in them, within the bounds of their

authority. The High Court has the power and the jurisdiction to

ensure that they act in accordance with the well established

O.P.(FC)No.525 of 2022

principles of law. The exercise of jurisdiction must be within the

well recognised constraints. It cannot be exercised like a 'bull in

a china shop', to correct all errors of the judgment of a court or

tribunal, acting within the limits of its jurisdiction. This

correctional jurisdiction can be exercised in cases where orders

have been passed in grave dereliction of duty or in flagrant abuse

of fundamental principles of law or justice.

15. In K.V.S. Ram v. Bangalore Metropolitan

Transport Corporation [(2015) 12 SCC 39] the Apex Court

held that, in exercise of the power of superintendence under

Article 227 of the Constitution of India, the High Court can

interfere with the order of the court or tribunal only when there

has been a patent perversity in the orders of the tribunal and

courts subordinate to it or where there has been gross and

manifest failure of justice or the basic principles of natural justice

have been flouted.

16. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)

KHC 1] a Division Bench of this Court held that, the law is well

settled by a catena of decisions of the Apex Court that in

proceedings under Article 227 of the Constitution of India, this

Court cannot sit in appeal over the findings recorded by the lower

O.P.(FC)No.525 of 2022

court or tribunal and the jurisdiction of this Court is only

supervisory in nature and not that of an appellate court.

Therefore, no interference under Article 227 of the Constitution is

called for, unless this Court finds that the lower court or tribunal

has committed manifest error, or the reasoning is palpably

perverse or patently unreasonable, or the decision of the lower

court or tribunal is in direct conflict with settled principles of law.

17. In view of the law laid down in the decisions referred

to supra, the High Court in exercise of its supervisory jurisdiction

under Article 227 of the Constitution of India cannot sit in appeal

over the findings recorded by a lower court or tribunal. The

supervisory jurisdiction cannot be exercised to correct all errors

of the order or judgment of a lower court or tribunal, acting within

the limits of its jurisdiction. The correctional jurisdiction under

Article 227 can be exercised only in a case where the order or

judgment of a lower court or tribunal has been passed in grave

dereliction of duty or in flagrant abuse of fundamental principles

of law or justice. Therefore, no interference under Article 227 is

called for, unless the High Court finds that the lower court or

tribunal has committed manifest error, or the reasoning is

palpably perverse or patently unreasonable, or the decision of the

O.P.(FC)No.525 of 2022

lower court or tribunal is in direct conflict with settled principles

of law or where there has been gross and manifest failure of

justice or the basic principles of natural justice have been flouted.

18. Viewed in the light of the law laid down in the decisions

referred to supra, no interference is warranted on Ext.P5 order of

the Family Court, Thrissur in I.A.No.2 of 2022 in G.O.P.No.116 of

2022, since the reasoning of the said court in that order is neither

perverse nor patently illegal, warranting an interference by this

Court in exercise of the supervisory jurisdiction under Article 227

of the Constitution of India.

In the result, this original petition fails and the same is

accordingly dismissed. Consequently, the interim order dated

13.09.2022 will stand vacated. The petitioner-father shall

handover the custody of the minor children to the respondent-

mother on 03.04.2023.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE yd

O.P.(FC)No.525 of 2022

APPENDIX PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION IN G.O.P NO.116/2022 BEFORE THE FAMILY COURT, THRISSUR Exhibit P2 TRUE COPY OF THE I.A.NO.2 OF 2022 IN G.O.P NO.116/2022 BEFORE THE FAMILY COURT, THRISSUR Exhibit P3 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE EXHIBIT P2 APPLICATION Exhibit P4 TRUE COPY OF THE APPLICATION IN G.O.P NO.437/2019 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR Exhibit P5 TRUE COPY OF ORDER IN I.A.NO 2 OF 2022 IN G.O.P NO.116/2022 DATED 29-08-2022 ON THE FILE OF FAMILY COURT ,THRISSUR EXHIBIT P6 True copy of the application in MP no.

                   1111/2020 in MC 274/2019
EXHIBIT P7         True copy of the Order in MP no.
                   1111/2020 in MC 274/2019 dated
                   7.12.2021

RESPONDENT EXHIBITS
Exhibit R1         A TRUE COPY OF THE HAND WRITTEN
                   ACKNOWLEDGMENT OF THE PETITIONER'S
                   FATHER DATED 21.08.2020