Dr.Dilna.M vs Dr.P.Sarat Chandran
2024 Latest Caselaw 9440 Ker

Kerala High Court

Dr.Dilna.M vs Dr.P.Sarat Chandran on 4 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
    THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
                   MAT.APPEAL NO. 579 OF 2023

AGAINST THE ORDER/JUDGMENT DATED 12.06.2023 IN OP NO.515 OF 2020
                    OF FAMILY COURT, KANNUR


APPELLANT/S:

   DR.DILNA.M, AGED 34 YEARS
   LATHAS,NEAR SARANGA THEATRE,POST
   VALAPATANAM,KANNUR DIST.KERALA., PIN - 670010

   BY ADVS.
   T.ASAFALI
   LALIZA.T.Y.


RESPONDENT/S:

   DR.P.SARAT CHANDRAN, AGED 34 YEARS
   S.V.NIVAS, PERALAM, CHEETA, POST KOZHUMMAL, KARIVELLUR,
   KANNUR DIST.KERALA, PIN - 670521

   BY ADV M.SASINDRAN


OTHER PRESENT:

   SRI M SASINDRAN, FOR PARTY RESP.


    THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
    04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
    FOLLOWING:
 Mat Appeal No.579 of 2023                 2




                                      JUDGMENT

Raja Vijayaraghavan, J.

The above Mat. Appeal is preferred by the respondents in O.P.

No.515 of 2020 on the file of the Family Court, Kannur. The 1st appellant

is the mother and the appellants 2 and 3 are the fraternal twins. The

respondent is the father of the twins and the former husband of the 1st

appellant.

2. Under challenge in this appeal is the judgment dated

12.6.2023 rendered by the Family Court allowing the petition filed by the

respondent/husband and making provisions for permanent custody,

visitorial rights, and custody during vacation of the children.

3. It would be relevant to note at this juncture that the earlier

proceedings between the parties were settled on mediation and an order

of divorce was granted. The settlement agreement also contains

provisions for monthly maintenance of the minor children.

4. In the petition for guardianship filed under Section 25 of the

Guardian and Wards Act, it was contended that the father was not being

permitted to interact with the children even though he has been complying

with the terms of the compromise entered into between the parties. It is

stated that though the petition filed for custody was settled on the basis of

compromise, the appellant/wife has been constantly violating the

conditions. It is stated that the twin children are more than 5 years of age

and the respondent-husband can very well look after the affairs of the

children. He also contended that his mother, grandmother, and sister were

at home to support him. According to him, the 1st appellant/wife was a

busy Dentist and she did not have the time to look after the children. It is

on these assertions that the respondent-husband had approached the

Family Court seeking permanent custody of the twin children.

5. The 1st appellant/wife entered appearance for herself and the

minor children and filed a detailed objection. She stated that the allegation

that she was not complying with the settlement agreement was untrue.

According to her, both the children had serious issues at the time of birth

and they require extreme care and nursing. It was contended that after

their birth, the children were diagnosed with Renal Tubular Acidosis (RTA)

and they require treatment and monitoring. Blood test is required to be

done every three months and samples of blood have to be taken from the

arteries. The minor son also had episodes of seizure and any stress may

exacerbate the situation. It was contended that the children are having

other ailments as well. The respondent is working as an Assistant

Professor in the Pariyaram Medical College and he is also running a Private

Clinic at Cheruvathur. He would not be in a position to take care of the

daily needs of the children if and when the custody of the children are

entrusted with him. It was contended that the aged grandmother and

mother of the respondent will not be able to manage the minor children.

On the other hand, the parents of the 1st appellant are at home and they

have enough spare time to look after the children.

6. The respondent entered the box and gave evidence as PW1,

and his father was examined as PW2. Exts.A1 to A3 (series) were marked

on his side. On the side of the respondents, the 1st appellant-wife was

examined as RW1, and Exts.B1 to B11 were marked.

7. After evaluating the facts and circumstances and the evidence

that was let in, the Family Court concluded that even if there is some truth

in the allegations leveled by the wife against the husband, the rights of the

father over the children cannot be refused. The Family Court also took

note of the fact that even in the settlement agreement entered into

between the parties, the right of the father was protected and respected.

Insofar as the medical conditions of the children are concerned, the Family

Court was of the view that the father is also a medical professional and he

would be in a position to manage the same. However, it was noted that

the children are very much comfortable with the mother and grandparents,

also they are studying in good schools and it may not be wise to shift

them. After considering all the relevant facts, the Family Court concluded

that the child in tender years requires the love, affection, company, and

protection of both parents. Holding so, disregarding the objections of the

mother for granting overnight custody to the father, after refusing the

request for permanent custody, the following directions were issued.

1. The petition is allowed in part.

2. The prayer for permanent custody of the children by the petitioner is rejected.

3. The permanent custody of the children shall be retained with respondent No.1 herself.

4. On all Second Saturdays and following Sundays the petitioner is allowed to have overnight custody of the children at his residence.

5. For handing over such custody respondent No.1 shall cause the children to be produced in the premises of Vadukunda Siva Temple, Madayipara, Pazhayangadi which is a place suggested by both parties, at 10.00 am on Second Saturday and shall take the children back to her custody from the same premises at 5.00 pm on the following Sunday.

6. On every 4th Sunday also the petitioner shall have custodial rights over the children from 10.00 am to 5.00 pm.

7. For such custody at 10.00 am on every 4th Sunday, respondent No.1 shall cause the children to be produced in the above said premises and shall take back the children by 5.00 pm.

8. During the first half of summer, Christmas and Onam vacations also the petitioner shall have right to have overnight custody of the children at his residence.

9. On beginning days of these vacations, the respondent No.1 shall cause to hand over the children to the petitioner from the same premises at 10.00 am and shall take back the children during the end of the first half of these vacations at 05.00 pm.

10. On all other days, the petitioner is having a right to contact the children through video calls once in a day at any convenient and reasonable time for half an hour without affecting their studies.

11. The respondent No.1 shall periodically update the petitioner about the status of illness as well as education of the children.

12. As the birthday of both the children are the same, the petitioner shall have the right to celebrate the birthdays with children at his residence in alternative years starting from the next birthday onwards for which also the custody of children shall be handed over to him from the same premises at 10.00 am and shall take back at 05.00 pm.

13. In case of any unexpected difficulties in handing over the custody of the children on the occasions mentioned above, information shall be given by the respondent No.1 to the petitioner.

14. During short-term custody of the children with the petitioner, respondent No.1 shall have the liberty to contact the children and to interact with them over video call at any convenient and reasonable time.

15. During the interim custody period, if any casualties arise, the petitioner shall take the children immediately to the hospital and inform the respondent No.1 about the same.

16. On occurring any such casualties during the short-term stay, irrespective of the directions aforementioned, the petitioner shall hand over the custody of the children to respondent No.1, after making the required medical care available to them.

8. In the appeal, it is contended that the grant of overnight

custody to the father, in the facts and circumstances, was highly unwarranted.

It is stated that a grant of such custody would be detrimental to the children.

The children require constant monitoring and support due to the peculiar

medical condition that they are suffering from and this cannot be provided by

the respondent-husband. It is also stated that the character of the

respondent is such that he may not show the required sensitivity to the

children. It is stated that the respondent is a person with questionable

antecedents and the entrustment of the children with him may not be good

for their proper upbringing.

9. When the matter had come up for consideration on 03.08.2023,

while issuing notice to the respondents, this Court had stayed the directions

issued by the Family Court but allowed the father to have custody of the

children every 2nd and 3rd Saturdays from 10 am to 5 pm.

10. By order dated 25.3.2024, we directed the parties to appear before

this Court.

11. We have interacted with the children, their mother, and father.

12. Though they are fraternal twins, Sreyas is smaller and weaker than

Diya. Before us, they have stated that they are much more comfortable with

the mother and they do not wish to be under the overnight custody of their

father. We found out that Sreyas was slightly more affected by the prospects

of staying with the father overnight than the sister.

13. The 1st appellant is a Dentist and she also expressed her concern

with the conditions in the order passed by the Family Court in granting

overnight custody on the second Saturday and during the vacations. She

stated that the respondent will not be at home and the fragile physical

condition of the children require constant monitoring by their mother. She

stated that she has no objection in granting day custody to the father on

more occasions rather than granting overnight custody. She also pointed out

that the daughter is out of medication but the son requires constant

monitoring. She also pointed out to us that the medical records disclose that

Sreyas has had episodes of seizure and it may recur if he is subjected to any

stress or strain.

14. The respondent stated before us that he is an Assistant Professor at

the Medical College, Pariyaram and he is competent to take care of the minor

children if they require any prompt intervention. He would point out that the

children are not very friendly with him now as they have been kept away from

the company. He would point out that the wish/desire of the children may

not be in their best interests. According to him, the children have been

brainwashed by the mother and if overnight custody for at least twice a

month is not granted, the children may distance themselves from him more.

Before us, he stated that he would be giving up his demand to have overnight

custody of the minor children for short-term periods during the summer

vacation, Christmas, and Onam vacation as ordered by the Family Court in

condition No. 8 of the order. He stated that he would be satisfied if overnight

custody is granted from 5:00 pm on the second Saturday of every month till

5:00 pm on the following Sunday and day custody during the 4th Sunday of

every month from 11:00 am to 5:00 pm.

15. When this suggestion was put to the mother, she had reservations

about granting overnight custody. She stated that she has no objection in

granting overnight custody on the second Saturday.

16. We have carefully considered the submissions advanced and have

ascertained the wishes of all the parties concerned.

17. We find that the children are not very happy to go with their father

and they are very much attached to the mother and the grandparents.

However, it is to be noted that they are just about 5 years of age. It is not

disputed by the father that both children are physically weak and they require

constant monitoring. It was after recognizing this aspect that the

respondent-father has fairly stated that he would be satisfied if the overnight

custody of the children were granted once a month for a day. As we note

that the respondent is a Doctor who is working in the Pariyaram Medical

College as an Assistant Professor, we are of the view that any emergency can

be dealt with by him appropriately during the period the children are in his

custody.

18. As held in Rohith Thammana Gowda1, 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

Rohith Thammana Gowda v. State of Karnataka & others [AIR 2022 SC 3511]

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 should make one of

them unworthy to claim for custody of the child concerned, the question can

and shall be decided solely by looking into the question as to, 'what would be

the best interest of the child concerned'. In other words, the welfare of the

child should be the paramount consideration.

19. In Yashita Sahu2, the Apex Court has reminded that while deciding

matters of custody of a child, the 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

Yashita Sahu v. State of Rajasthan [2020 (3) SCC 67]

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

reunion 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 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 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 the 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.

21. Having evaluated the facts of the instant case, in the light of

the request made by both parents, we are of the view that the father can be

granted overnight custody for a day once a month and day custody once a

week so that the overall welfare of the children can be prioritized and it can

be ensured that they receive the necessary care, love, and protection from

both parents. The grant of overnight custody for a day shall ensure that the

child maintains a relationship with both parents so that their social, physical,

and psychological development is not impaired.

22. Resultantly, this Appeal is partly allowed. The following

directions are issued in modification of the order passed by the Family Court.

a) On the second Saturday of every month, the respondent shall be entitled to have overnight custody of the appellants 2 and 3. The respondent shall collect the children from the temple premises of the Kalarivathukkal Bhagavathy Temple, Valapattanam at 5:00 pm on the second Saturday of every month and the children shall be returned back to the temple premises at 5:00 pm on the following Sunday.

b) On the fourth Sunday of every month, the appellant shall hand over the custody of the children to the respondent at 10:00 am at the above temple premises and the children shall be returned back at 5:00 pm on the same date.

c) During the period children are with either of the parties, the other party will be entitled to interact with the children through video call between 7:00 pm and 8:00 pm.

d) The 1st appellant shall share all the medical history of the children and the details of medicines with the respondent-father to enable him to be acquainted with the same.

e) Considering both children have the same birthday, the arrangement allows the 1st appellant and the respondent to take turns hosting the birthday celebrations at their homes, starting from the next birthday. This means if the 1st appellant hosts the 2025 birthday, the respondent-father will host the 2026 birthday. On the years when the father is celebrating, he will receive custody of the children at 10:00 am, and they will be returned to the mother by 5:00 pm on the same day, ensuring each parent has the opportunity to celebrate this special day with the children in a structured and fair manner.

f) If any reason, whatsoever, the custody cannot be handed over to the father due to any medical condition or illness,

the custody shall be handed over on the same day of the following week.

g) Should the children fall ill or experience any significant health issue while under the overnight custody of the respondent, it is imperative that the respondent immediately inform the 1st appellant, who is the mother.

Upon her request, the children must be returned to her without delay. This provision ensures that during such times of illness or discomfort, the children have the opportunity to be cared for by their mother, with whom they are clearly at ease and more comfortable.

sd/-

RAJA VIJAYARAGHAVAN V

JUDGE

sd/-

P.M.MANOJ

JUDGE das

APPENDIX OF MAT.APPEAL 579/2023

PETITIONER ANNEXURES

Annexure A-1 TRUE COPY OF THE ORIGINAL PETITION NO.641/2015 FILED BY THE 1ST APPELLANT BEFORE THE FAMILY COURT,KANNUR.

Annexure A2 TRUE COPY OF THE MEMORANDUM OF AGREEMENT ENTERED INTO BETWEEN THE 1ST APPELLANT AND THE RESPONDENT AT SUB MEDIATION CENTRE,KANNUR

Annexure A3 TRUE COPY OF THE MEMORANDUM OF AGREEMENT DT.5-2-2019 ENTERED INTO BETWEEN THE 1ST APPELLANT AND THE RESPONDENT AT MEDIATION SUB CENTRE, KANNUR

Annexure A4 CERTIFIED COPY OF THE JUDGMENT DATED 12TH JUNE 2023 MADE IN OP NO.515/2020 ON THE FILE OF FAMILY COURT, KANNUR

Annexure A5 CERTIFIED COPY OF THE DECREE DT.12TH JUNE 2023 MADE IN OP NO.515/2020 ON THE FILE OF FAMILY COURT, KANNUR

Annexure A6 PHOTOGRAPH OF THE RESIDENCE AND THE CLINIC OF THE 1ST APPELLANT

Annexure A7 NOTARISED COPY OF THE RATION CARD CONTAINING THE NAMES OF THE PERSONS LIVING AT THE RESIDENCE OF THE APPELLANTS

Annexure A8 DISCHARGE SUMMARY OF THE 3RD APPELLANT IN PROOF OF HIS TREATMENT AS IN PATIENT BABY MEMORIAL HOSPITAL, KOZHIKODE.

Annexure A9 TRUE COPY OF THE NEUROGROAPHY AND ELELCTLROMOGROAPHY REPORT RELATING TO THE 3RD APPELLANT FOR HIS PROLONGED TREATMENT, WHICH HAD UNDERGONE AT ASTER MIMS HOSPITAL,KANNUR