Sonia Baby vs Nibin M Mani
2024 Latest Caselaw 12987 Ker

Kerala High Court

Sonia Baby vs Nibin M Mani on 23 May, 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 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                     OP (FC) NO. 326 OF 2024

   AGAINST THE ORDER/JUDGMENT DATED IN OPGW NO.394 OF 2023 OF
                     FAMILY COURT, KOTTAYAM

PETITIONER/S:

    1     SONIA BABY, AGED 32 YEARS,   D/O BABY V.C,
          VARIPPAKUNNEL HOUSE, NJEEZHOOR P.O, MARANGOLI
          KARA,KADATHURUTHY VILLAGE, VAIKOM, KOTTAYAM, PIN -
          686604

    2     BABY V.C, AGED 58 YEARS, S/O CHACKO,
          VARIPPAKUNNEL HOUSE, NJEEZHOOR P.O, MARANGOLI KARA,
          KADATHURUTHY VILLAGE, VAIKOM, KOTTAYAM, PIN - 686604

    3     SOLLY BABY, AGED 56 YEARS,W/O BABY V.C,
          VARIPPAKUNNEL HOUSE, NJEEZHOOR P.O, MARANGOLI KARA,
          KADATHURUTHY VILLAGE, VAIKOM, KOTTAYAM, PIN - 686604

          BY ADVS.
          THOMAS J.ANAKKALLUNKAL
          ANUPA ANNA JOSE KANDOTH
          MELITUS MARIA STANLY
          JAYARAMAN S.
          DHANYA SUNNY
          ANN MILKA GEORGE

RESPONDENT/S:

          NIBIN M MANI, AGED 32 YEARS, S/O MANI THOMAS,
          MUNDANANIYIL HOUSE, THOVARAYAR P.O, SUVARNAGIRI KARA,
          KATTAPPANA VILLAGE. IDUKKI, PIN - 685511
 OP(FC) No.326 of 2024
                                     2




             BY ADVS.
             SANTHOSH PETER
             P.N.ANOOP(K/1451/2003)
             M.S.SANDEEP SUDHAKARAN(K/000598/2018)
             JOBIN GRACE THOMAS(K/000699/2023)

     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(FC) No.326 of 2024
                                                 3




                                         JUDGMENT

Raja Vijayaraghavan, J.

The first petitioner is the wife of the respondent. The petitioners 2 and

3 are the parents of the first petitioner. The petitioner in his marriage with the

respondent has two children.

2. The marital relationship is strained and the parties are residing

separately. As the mother is working in the United Kindom in the health

sector, the children are with the maternal grandparents. Seeking permanant

custody of the children, the respondent approached the Family Court and

preferred OP (G & W) 394/2023.

3. While the petition was pending IA No 2/23 was filed seeing

interim custody of the Children during vacation and the same was allowed by

the Family Court by the impugned order. The Family Court ordered that the

custdoy of the Children be handed over to the petitioner from 21.05.2024 till

29.05.2024.

3. Sri Thomas, the learned counsel representing the petitioner,

submitted that the order passed by the Family Court is legally untenable. He

emphasized that the elder child has been diagnosed with Attention

Deficit/Hyperactivity Disorder (ADHD) and is receiving treatment at Sunrise

Hospital, Kakkanad. It is further contended that the physician has prescribed

strict dietary guidelines for the eleder child. However,when the child is in their

father's care, they are given foods that contravene these dietary restrictions.

This dietary non-compliance has reportedly led to repeated instances of

recurrence of illnesses. The counsel submitted that the doctor has opined that

the violent and hyperactive behavior is due to the inappropriate dietary

choices made by their father.

4. The learned counsel appearing for the respondent refuted the

contentions. He submitted that the children need the love and care of both

parents. He pointed out that the mother of the children is working abroad

and they are left in the company of the aged grand parents.

5. By order dated 20.05.2024, we directed the parties to appear

along with the children. We have had interactions with the petitioner, who

came with the children, the respondent and we have perused the records. It

appears that the petitioner is presently working as a Nurse in the United

Kingdom and she is going back on 28.05.2024.

6. We find that the Family Court, by the impugned order, had

granted custody of both children from 21.05.2024 till 29.05.2024 to the

father. We find from the submissions that the elder boy is a school-going

child. The school is scheduled to reopen on 04.06.2024.

7. In Yashita Sahu1, the Apex Court emphasised that the welfare

of the child is the primary and paramount consideration in custody matters.

Technical objections should not impede this welfare. The court must consider

the best interests of the child, rather than the views of one parent alone.

Custody battles often portray one parent as a villain, which can harm the

child. Therefore, courts must carefully evaluate the statements of both

parents. The Apex Court noted that a child of tender years needs the love,

affection, company, and protection of both parents, which is a basic human

Yashita Sahu v. State of Rajasthan [2020 KHC 6045]

right. Parental conflicts should not deprive the child of care from either

parent. Frequent separation and reunion can traumatize the child, so courts

must meticulously weigh all circumstances before determining custody

arrangements. Even if custody is granted to one parent, the other should

have sufficient visitation rights to maintain the child's social, physical, and

psychological contact with both parents. Denial of contact should occur only

in extreme cases, with reasons provided. Courts must clearly define the

specifics of visitation rights to ensure the child retains the love and affection

of both parents. In Vasudha Sethi and others v. Kiran V. Bhaskar and

another2, the Apex Court held that when the court alters custody from one

parent, it should generally grant visitation rights to the other parent, barring

compelling reasons. This is because the child benefits from the company of

both parents. Visitation rights are granted for the welfare of minors and to

ensure they can maintain relationships with both parents, not merely to

protect parental rights. The court emphasized that the child's well-being and

welfare must take precedence over the individual rights of the parents. In

(AIR 2022 SC 476)

Rohith Thammana Gowda v. State of Karnataka3, it was held that 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 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.

8. Having considered the facts, we are of the view that the interim

order granting custody to the father for a few days is not liable to be

interfered with. However, as the mother is leaving the country on 28th of this

month, let the children be with the mother till such day. Custody can be given

[AIR 2022 SC 3511]

to the father from 29.05.2024 to 2.06.2024.

9. In that view of the matter, in partial modification of the order

passed by the Family Court, the custody of the minor children shall be

handed over to the respondent at 10.00 AM on 29.05.2024 at the premises of

the Family Court, Ettumanoor. The respondent shall return the custody of the

children to the petitioners 2 and 3 at 3.00 PM on 02.06.2024. The respondent

shall adhere to the strict dietary restrictions and administer the medicines to

the children as ordered by the Physician.

With the above modification, this petition is disposed of.

sd/-

RAJA VIJAYARAGHAVAN V, JUDGE

sd/-

P.M.MANOJ JUDGE das

APPENDIX OF OP (FC) 326/2024

PETITIONER EXHIBITS

Exhibit P1 THE ORIGINAL MEDICAL CERTIFICATE OF THE CHILD DATED 03-04-2023 ISSUED BY DR. NEENA SHILEN, DEVELOPMENTAL PEDIATRICIAN OF SUNRISE HOSPITAL, KAKKANAD

Exhibit P2 THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 08-02-2024, SHOWING THE CONDITION OF THE CHILD

Exhibit P3 THE MEDICAL REPORT / O.P. TICKET OF THE CHILD UNDERGOING THE TREATMENT IN COMMUNITY HEALTH CENTRE ARUNOOTIMANGALAM DATED 03/01/2024

Exhibit P4 THE MEDICAL CERTIFICATE DATED 22-03-2024 ISSUED BY THE CONCERNED MEDICAL OFFICER OF SUNRISE HOSPITAL

Exhibit P5 THE TRUE COPY OF THE PETITION I.A 9/24

Exhibit P6 THE OBJECTION FILED BY THE RESPONDENTS IN IA 9/24 IS PRODUCED

Exhibit P7 THE TRUE COPY OF THE ORDER IN I.A 9/24 DATED 03-05-2024

Exhibit P8 THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 03/05/2024 ISSUED BY DR. NEENA

SHILEN, DEVELOPMENTAL PEDIATRICIAN, SUNRISE HOSPITAL, KAKKANAD

Exhibit P9 THE TRUE COPY OF THE I.A. NO. 2/2023

Exhibit P10 THE TRUE COPY OF THE ORDER IN I.A NO.2/23