Kerala High Court
Heena K.N vs Yasir P.M on 3 April, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
OP (FC) NO. 89 OF 2024
AGAINST THE ORDER DATED 08.01.2024 IN OP NO.784 OF 2023 OF
FAMILY COURT, PALAKKAD ARISING OUT OF THE ORDER DATED 08.09.2023
IN OP NO.784 OF 2023 OF FAMILY COURT, PALAKKAD
PETITIONER/PETITIONER/RESPONDENT:
HEENA K.N
AGED 30 YEARS
D/O. NAJEEB, 32/297(2), ABHILASH NAGAR,
PUTHUPALLY STREET, NURANI P.O,
PALAKKAD DISTRICT, PIN - 678004
BY ADV K.ABOOBACKER SIDHEEQUE
RESPONDENT/RESPONDENT/PETITIONER:
YASIR P.M
AGED 37 YEARS
S/O. MUHAMMED MUSTHAFA,
PEZHUMTHARAKKAL HOUSE,
NABEEL OIL MILL, KONGAD P.O,
PALAKKAD DISTRICT, PIN - 678631
BY ADVS.
N.SUDHA(S-652)
BABU SHANKAR(K/821/2010)
ALVIN JEWEL S.S.(K/000876/2019)
VIDHYA T.U.(K/000827/2023)
MENINO FUTO(K/001231/2023)
OP(FC) No.89 of 2024 2
SREELAKSHMI B.T.(K/000991/2023)
SRI. K S BABU
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(FC) No.89 of 2024 3
JUDGMENT
Raja Vijayaraghavan, J.
This petition is filed seeking to quash the order dated 08.09.2023 in
I.A.No.2 of 2023 in O.P.No.784 of 2023 and the further order dated
08.01.2024 in I.A. No. 5 of 2023 in O.P.No.784 of 2023 on the file of the
Family Court, Palakkad.
2. The Original Petition was filed by the respondent father for
permanent custody of the minor son.
3. While the petition was pending consideration, an application
was filed as I.A. No. 2 of 2023 seeking interim custody.
4. The Family Court interacted with the parties and relying on
the law laid down in the Yashita Sahu1 came to the conclusion that while
deciding matters of custody of a child, the primary and paramount
Yashita Sahu v. State of Rajasthan and Others [2020 KHC 6045]
consideration is the welfare of the child. The Family Court also took note
that a child, especially a child of tender years, requires the love, affection,
company, and protection of both parents and the same basic human rights
of the child. The Family Court took note of the fact that the child is seven
years of age and after considering the entire facts issued the following
directions:-
"1. The petitioner is allowed to have the interaction with the minor child
on all 2nd and 4th Saturdays for the time being.
2. The respondent is hereby directed to produce the child before the
C.M.O of this court on all 2nd and 4th Saturdays at 1.30 p.m and
shall hand over the custody of the child to the petitioner till 4.30 p.m.
3. The petitioner shall handover the custody of the minor child at 4.30
p.m to the respondent in the presence of the C.M.O.
4. The petitioner shall not cause any annoyance or inconvenience to the
child remaining in his custody.
5. The petitioner shall pay Rs.700/- to the respondent towards the
travelling expense on all the interaction days;
6. The prayer of the petitioner for granting temporary custody as prayed
is disallowed for the time being."
5. It appears that in pursuance of the directions, on 14.10.2023,
the mother brought the child to the Family Court for interaction with the
father. The mother alleges that the respondent attacked the petitioner
consequent to which, she lodged an FIR before the Palaghat North Police
Station and registered as Crime No.1289/2023 inter alia for the offence
under Sections 341 and 323 of the Indian Penal Code. Three months after
the registration of the crime, an application was filed as I.A.No. 5 of 2023
seeking to cancel the earlier order.
6. The Family Court heard both sides and took note of the fact
that an incident had in fact taken place but it was held that the allegations
therein were not a reason to cancel the earlier order. After considering the
facts, the following directions were issued to ensure that an incident
similar to the one that occurred on 14.10.2023 does not happen again:-
"In the result, the petition is disposed of giving a warning to the
original petitioner to abstain from causing any inconvenience or
annoyance to the child as well to the original respondent and further
directed the original petitioner and the original respondent (both) that
during interaction days, the original petitioner and the original
respondent alone shall be present in the Court precincts and the original
petitioner alone is permitted to interact with the minor child and the
original respondent shall leave the child freely for interaction."
7. The said orders are under challenge.
8. Sri. K. Aboobacker Sidheeque, the learned counsel appearing
for the petitioner, highlighted that permitting the child to have interaction
with the father as per Ext.P4 order would only result in similar situations
happening yet again. According to the learned counsel, the Family Court
was not justified in not cancelling the order.
9. The learned counsel appearing for the respondent vehemently
opposed the contentions and submitted that no incident of the nature
alleged had in fact taken place and it is further submitted that registration
of the crime is no reason to refuse interaction of the father with the minor
child.
10. We have considered the submissions advanced. In Mat.
Appeal No. 579/2020, we had occasion to consider the precedents of the
Apex Court with regard to the custody of the children and had occasion to
observe as under:
"18. As held in Rohith Thammana Gowda, the welfare of
the children is of paramount consideration in an enquiry
regarding custody of children. In the 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. It was further held that while considering the
claim for custody of a minor child, unless very serious, proven
conduct which should make one of them unworthy to claim for
custody of the child concerned, the question can and shall be
decided solely looking into the question as to, 'what would be
the best interest of the child concerned'. In other words, welfare
of the child should be the paramount consideration."
19. In Yashita Sahu, the Apex Court has reminded 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. It was further held 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 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.
20. What can be discerned from the above judgments is
that the child's welfare is the most important consideration in
custody disputes. The principles in the above judgments can be
encapsulated as under:
i) Child's Welfare is Paramount: In custody matters,
the child's welfare is the most important
consideration, surpassing all other factors.
ii) Child's Wishes vs. Best Interest: There's a distinction
between what a child desires and what's actually
best for them. While a child's wishes can be
considered, the court must ultimately decide what
serves their best interests, taking into account all
relevant circumstances.
iii) Parental Conduct: Custody should not be decided
based on negative traits of a parent unless there's
serious, proven misconduct that makes them unfit
for custody. The prime focus would still be the best
interest of the child.
iv) Both Parents' Views and Child's Rights: Custody
decisions should not be biased by the perspective of
one parent over the other. The child, often caught in
parental conflicts, has the right to love, affection,
and care from both parents. The court must
navigate these disputes carefully, ensuring the
child's well-being is not compromised by parental
conflict.
v) Importance of Both Parents: Even if custody is
awarded to one parent, the other must have
sufficient visitation rights. This ensures the child
maintains a relationship with both parents, which is
crucial for their social, physical, and psychological
development.
vi) Extreme Circumstances for Denying Contact: Only
in severe cases should a parent be denied contact
with their child. Courts must provide clear reasons
for such decisions and define the specifics of
visitation rights to ensure the child does not lose the
connection with either parent."
In the light of the principles above, we have considered the facts
and circumstances. We note that the child is the victim in custody battles
and the acrimonious fight between spouses cannot be a reason to deny
short interaction between the father and the child. We find that the Family
Court has imposed appropriate conditions to ensure that no incident of a
similar nature that took place on 14.10.2023 happens again. From the
photographs produced before this Court, it appears that all through the
interaction between the father and the child, the child is sitting on the lap
of the mother and playing on a mobile phone. The quarrel occurred as
both the parents were in the same room. The Family Court shall make an
endeavor and ensure that when the child is brought to the court premises
for interaction, both spouses are not in the same room.
In the facts and circumstances, we find absolutely no reason to
interfere. This Original Petition is dismissed accordingly.
sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
sd/-
P.M.MANOJ
JUDGE
DCS
APPENDIX OF OP (FC) 89/2024
PETITIONER EXHIBITS
Exhibit-P1 A TRUE COPY OF THE O.P. NO.784/2023 OF THE
FAMILY COURT, PALAKKAD.
Exhibit-P2 A TRUE COPY OF THE I.A NO.2/2023 IN O.P
NO.784/2023 OF THE FAMILY COURT, PALAKKAD.
Exhibit-P3 A TRUE COPY OF THE OBJECTION FILED IN I.A
NO.2/2023 IN O.P NO.784/2023 OF THE FAMILY
COURT, PALAKKAD DATED 18.08.2023.
Exhibit-P4 A TRUE COPY OF THE ORDER DATED 08.09.2023 IN
I.A NO.2/2023 IN O.P NO.784/2023 OF THE FAMILY
COURT, PALAKKAD.
Exhibit-P5 A TRUE COPY OF THE WOUND CERTIFICATE DATED
14.10.2023 ISSUED FROM THE DISTRICT HOSPITAL,
PALAKKAD.
Exhibit-P6 A TRUE COPY OF THE F.I.R DATED 15.10.2023 IN
CRIME NUMBER 1289 OF 2023 OF PALAKKAD TOWN
NORTH POLICE STATION, PALAKKAD DISTRICT.
Exhibit-P7 A TRUE COPY OF THE I.A NO.5/2023 IN O.P
NO.784/2023 OF THE FAMILY COURT, PALAKKAD.
Exhibit-P8 A TRUE COPY OF THE OBJECTION FILED IN I.A
NO.5/2023 IN O.P NO.784/2023 OF THE FAMILY
COURT, PALAKKAD DATED 26.10.2023.
Exhibit-P9 A TRUE COPY OF THE ORDER DATED 08.01.2024 IN
I.A NO.5/2023 IN O.P NO.784/2023 OF THE FAMILY
COURT, PALAKKAD.
RESPONDENT EXHIBITS
Exhibit R1 (a) A photograph of the interaction during the time
of on 23 rd September, 2023
