Abraham Joseph Samuel vs Shamarin Abraham Joseph
2023 Latest Caselaw 4097 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 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
                O.P.(FC) NO. 111 OF 2023
AGAINST THE ORDER DATED 28.12.2022 IN I.A.NO.5 OF 2022 IN
   O.P.NO.840 OF 2022 ON THE FILE OF THE FAMILY COURT,
                        THRISSUR
PETITIONER:

         ABRAHAM JOSEPH SAMUEL
         AGED 45 YEARS, S/O SAMUEL ABRAHAM, FLAT NO.221,
         2ND FLOOR, V.M SERENITY 2ND CROSS,
         BRINDAVAN LAY OUT, HORAMAVU MAIN ROAD,
         BANGALORE, PIN - 560043.
         BY ADVS.
         J.JULIAN XAVIER
         FIROZ K.ROBIN
         ROY JOSEPH
         ANIES MATHEW
         ANJANA RAM
         NIRMAL KURIEN EAPEN


RESPONDENT:

         SHAMARIN ABRAHAM JOSEPH
         AGED 40 YEARS
         D/O JACOB C JOB, KOTTIL (H), TALAPPILLY TALUK,
         PIN - 680582.
         BY ADV K.P.SREEKUMAR
                            2
O.P.(FC) No.111 of 2023



       THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING ON 21.03.2023, THE COURT ON 31.03.2023 DELIVERED
THE FOLLOWING:
                                3
O.P.(FC) No.111 of 2023



                          JUDGMENT

P.G. Ajithkumar, J.

The petitioner in G.O.P.No.840 of 2022 before the Family

Court, Thrissur has filed this Original Petition under Article

227 of the Constitution of India. He challenges Ext.P6, which

is the order dated 28.12.2022 of the Family Court in IA 5 of

2022 in OP 840 of 2020. He has filed I.A.No.5 of 2022 for

getting interim custody of his son Aron S.Abraham, aged 14

years. The Family Court did not allow that prayer, however,

allowed him to have interaction with the child from 10.00 a.m.

to 4.00 p.m. on every second Saturday and to contact the

child through video call between 7.30 p.m. and 8.00 p.m. on

every Wednesday, Saturday and Sunday. The petitioner

challenges the said order.

2. On 06.03.2023 urgent notice on admission was

directed to be served on the respondent. On 13.03.2023 the

respondent entered appearance and filed a counter affidavit.

The petitioner has filed a reply affidavit in answer to the said

counter affidavit.

O.P.(FC) No.111 of 2023

3. On 17.03.2023, upon hearing the submissions of

the learned counsel on both sides, we directed both parties to

be present in person before the court at 10.15 a.m. on

21.03.2023 along with the child. In pursuance of that order,

the petitioner, the respondent and the child appeared in

person before us at 10.15 a.m. on 21.03.2023. We have

interacted with them. Finding that expert counselling would be

appropriate, they were directed to appear before the Family

Counsellor attached to the Kerala High Court Legal Services

Committee at 11.30 a.m. on the same day. At 3.00 p.m., the

same day, they reported back. A report of the counsellor was

made available for our perusal in a sealed cover. We have

perused the report and interacted with the petitioner, the

respondent and the child again.

4. Heard the learned counsel appearing for the petitioner

and the learned counsel appearing for the respondent.

5. Aron S.Abraham is the only child of the petitioner

and the respondent. The petitioner-father is working in

Bangalore. He along with the respondent and the child was

O.P.(FC) No.111 of 2023

residing at Bangalore. The child was studying there. Although

the respondent was working as a teacher earlier, he

discontinued that avocation. Both of them would state that

Aron S.Abraham is a brilliant student; even got qualified for

General Knowledge Talent Search Olympiad. The petitioner

would submit that the respondent left the matrimonial home,

and went to her parental home at Vadakkencherry along with

the child quite recently. The child was enrolled in Bharatheeya

Vidya Mandir, Thrissur and now he is studying there.

6. The respondent in the meantime filed G.O.P.No.840

of 2022 before the Family Court, Thrissur for declaring her the

guardian of the child and a decree of injunction to restrain the

petitioner from forcibly taking away the child. Ext.P1 is a copy

of the original petition. The petitioner entered appearance and

filed a counter affidavit. He has also filed I.A.No.5 of 2022

seeking a direction to the respondent to produce the child

before the Family Court and to give him custody. The

respondent filed a detailed counter reiterating her contentions

in the original petition.

O.P.(FC) No.111 of 2023

7. The Family Court directed both the parties and

child to appear before the court. On their appearance, they

were sent for counselling. They were referred for counselling

with a Clinical Psychologist also. In consideration of the report

of both the Principal Counsellor and Clinical Psychologist as

also the desire expressed by the child, the Family Court

declined the request of the petitioner to give him custody of

the child.

8. The learned counsel appearing for the appellant

would submit that the child having been stayed along with the

respondent, his preference and desire would be influenced by

the mother and that was why he is reluctant to go along with

the father. If it is considered dispassionately bearing in mind

the welfare of the child, his custody is liable to be handed

over to the father. The learned counsel would also submit

relying on the decision of this Court in Hirosh Joseph v. Tina

Kalayil [2023 (1) KLT 461] that the claim to get custody of

the child of the petitioner is genuine. It is submitted that the

child being very studious and brilliant, his education at

O.P.(FC) No.111 of 2023

Bangalore will ensure him a bright future and therefore his

custody has to be given to the father. During interaction, the

petitioner also stated his anxiety about the future of the child.

In his view, academic avenues are less at Thrissur comparing

to Bangalore. He accordingly claims to give the child in his

custody. He had, however, conceded that in case, it is found

that the child should continue his studies at Thrissur, the

petitioner may be given periodical overnight custody,

especially during vacation.

9. The child is now in his prime stage of education. He

has enrolled in Bharatheeya Vidya Mandir, Thrissur. He can

commute from the parental house of his mother at

Vadakkencherry, where they are now staying. Of course, there

is a distance of 21 kms. between two places, and daily

commutation may cause some inconvenience. The child,

however, stated that he is comfortable in studying at

Bharatheeya Vidya Mandir, Thrissur, and staying along with his

mother at Vadakkencherry. He is a grown up child, capable

enough to take a rational decision in his affairs. Taking into

O.P.(FC) No.111 of 2023

account desire of the child and other attending circumstances,

we are of the view that the child has to continue in the

custody of the mother. The decision regarding custody of the

child in Hirosh Joseph (supra) was also taken specifically by

giving due consideration to the desire of the child, though he

was aged only 10 years.

10. In Rohith Thammana Gowda Vs. State of

Karnataka [AIR 2022 SC 3511] the Apex Court held 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 against each other so as to depict the other

unworthy to have the custody of the child.

O.P.(FC) No.111 of 2023

11. Therefore, the desire of the child and welfare of the

child are different. However, while considering and best

interest of the child, the desire of the child also has relevance,

especially when the child is grown up having ability to take

rational decision. In such a case, the desire of the child and

the convenience of education and comfortable stay have to be

given more importance than the rights of the parents to have

custody. viewed in the said perspective, we are of the view

that the order of the Family Court declining interim custody to

the petitioner does not suffer from any illegality. Unless the

order under challenge is perverse or against express

provisions of law, this Court cannot interfere with it in

exercise of the powers under Article 227 of the Constitution of

India. Therefore, we find no reason to interfere with Ext.P6

order of the Family Court in I.A.No.5 of 2022.

12. The petitioner made a further request that interim

custody of the child for a few days during the school vacation

may be allowed to him. That is a matter to be decided by the

Family Court, Thrissur, after taking into account all necessary

O.P.(FC) No.111 of 2023

aspects, including the school timings of the child. Therefore,

we leave that question to be decided by the Family Court.

Original Petition is accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

O.P.(FC) No.111 of 2023

APPENDIX OF OP (FC) 111/2023

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PETITION FILED UNDER SECTIONS 7 AND 12 OF THE GUARDIANS AND WARDS ACT R/W SECTION 7 (1) (D) (G) OF THE FAMILY COURTS ACT DATED 04.04.2022 BY THE RESPONDENT EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT DATED 01/2023 FILED IN G.OP NO.840/2022 BY THE PETITIONER HEREIN EXHIBIT P3 TRUE COPY OF THE PETITION DATED 01.06.2022 SUBMITTED BY THE PETITIONER BEFORE THE FAMILY COURT UNDER SECTION 12 OF THE GUARDIAN AND WARDS ACT, 1890 EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT DATED 31.07.2022 SUBMITTED BY THE RESPONDENT HEREIN EXHIBIT P5 TRUE COPY OF THE LEGAL NOTICE DATED 23.04.2022 ISSUED ON BEHALF OF THE PETITIONER TO THE RESPONDENT EXHIBIT P6 TRUE COPY OF THE ORDER DATED 28.12.2022 IN I.A NO.5/2022 IN G.OP NO.840/2022 OF THE FAMILY COURT, THRISSUR RESPONDENT EXHIBITS EXHIBIT-R1(A) TRUE COPY OF THE CERTIFICATE EVIDENCING HIS RANK AT THE STATE LEVEL BY TECH FEST IIT BOMBAY, DATED NIL EXHIBIT-R1(B) TRUE COPY OF THE MESSAGE FROM AAKASH NATIONAL TALENT HUNT EXAM., DATED NIL

O.P.(FC) No.111 of 2023

EXHIBIT-R1(C) TRUE COPY OF THE INFORMATION SHOWING THE RESULT (AAKASH NATIONAL TALENT HUNT EXAM.), DATED NIL