Kerala High Court
Nishad P A vs Naseema on 25 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:71300
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA,
1946
MAT.APPEAL NO. 778 OF 2024
ORDER DATED 21.08.2024 IN IA 2/2024
IN OP NO.771 OF 2024, FAMILY COURT, PALAKKAD
APPELLANT/RESPONDENT:
NISHAD P A, AGED 34 YEARS
S/O ABDUL NASAR,
RESIDING IN THE ADDRESS PUZHANGARAYILLATHIL,
VENNAKKARA, PALAKKAD-II VILLAGE EAST,
WORKING AT AVAITS HOSPITAL, NENMARA,
PALAKKAD TALUK, PALAKKAD DISTRICT,
PIN - 678004.
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENT/PETITIONER:
NASEEMA, AGED 24 YEARS,
W/O NISHAD AND D/O MUHAMMEDALI,
PUZHANGARAYILLATHIL, VENNAKKARA,
PALAKKAD-II VILLAGE EAST,
NOW RESIDING AT KONGHANAM VEEDU,
BANGLAVUPARAMBU, MEMPARAMBU DESOM,
PALLIPPURAM P O, PALAKKAD VILLAGE AND TALUK,
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MAT.APPEAL NO. 778 OF 2024
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PALAKKAD DISTRICT, PIN - 678006.
BY ADVS.
JAGADEESH K
V.RENJU(K/2317/1999)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR
ADMISSION ON 25.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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MAT.APPEAL NO. 778 OF 2024
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JUDGMENT
Devan Ramachandran, J.
The father of two minor children, aged 2½
years and 5 years respectively, impugns the
order of the learned Family Court, Palakkad, in
I.A.No.2/2024 in O.P.No.771/2024, through which,
their interim custody has been given to the
respondent - mother.
2. The appellant challenges the above
order on the ground that the elder child is not
willing to go to the mother; and further that he
has been in his custody for the last several
months.
3. Before we move forward, we must
record that, as offered by the parties, they
were present before us on 06.09.2024, along with
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MAT.APPEAL NO. 778 OF 2024
the children. We interacted with them, and our
opinion has been recorded in the order on that
day, which is as below:
Both sides, along with their
children, are present before us.
2. We talked to the elder son-who
is 5 years in age, who was remarkably
articulate; and said that he was equally
attached to both his parents, adding that
he has no objection in being with either
of them.
3. The younger child-who is only
2½ years, was calling the elder son by
the moniker 'ikka'; and was clearly
yearning for his company. We allowed the
children to mingle with each other, while
we interacted with the parents. They were
playing with each other, hugging one
another, and were very happy.
4. We are prima facie sure that
the children require to be with each
other; and that, for the time being, in
the custody of the mother.
5. As far as the parents are
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MAT.APPEAL NO. 778 OF 2024
concerned, there are certain matrimonial
issues between them. After we discussed
the issues with them for some time, they
agreed that they will be present before
this Court on 10.09.2024, to attend the
counseling under the aegis of the Family
Counseling Center.
6. Since the elder son is stated
to be studying, we direct the father to
hand over his essential articles-
including uniform, educational books and
bags - to the home of the mother, which
shall be done on 07.09.2024 itself.
7. In the above circumstances, we
adjourn this matter to be called on
10.09.2024; until which time, we allow
the mother to take the children, but to
produce them before us on the next
posting date. Further directions will be
issued on the said date.
List on 10.09.2024.
4. Subsequently, on 10.09.2024, the
parties again appeared before us with the
children; and on consent, we passed the second
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order on that day, which is as follows:
Read order dated 06.09.2024.
The interim arrangement in the
said order will continue until the next
posting date. In the meanwhile, both
sides agreed that the father can have the
interim custody of the children from
11.00 a.m. on 16.09.2024 till 3.00 p.m.
on that day. We clarify that the father
will not take the children to his house
but only to places of entertainment or
public places like parks etc. and will
return the children back to the home of
the wife, from where he is allowed to
collect them in the morning.
List on 25.09.2024.
5. In the meanwhile, we also obtained a
report, dated 10.09.2024, from the learned
Counsellor attached to the Family Counselling
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MAT.APPEAL NO. 778 OF 2024
Centre of this Court, which, for the purpose of
ease of reading, is extracted as under:
* Based on the interactions with
Nishad, Naseema and both the children, it
is clear that the child has a strong
desire to live with his mother and his
younger sister.
* But also maintains a positive
relationship with his father.
* This unique dynamic presents an
opportunity for both parents to
prioritize their child's needs and ensure
the child's best interests are met.
* The child is strongly bonded with
his sister and wishes to maintain a
regular contact with her.
* Consider the possibility of
family counselling for both parents to
work towards a collaborative co-parenting
arrangement.
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* Regular contact and visitation
with both parents should be ensured to
support the child's emotional and
psychological well being.
6. Therefore, as matters now stand,
the mother is exercising custody of the children
under our orders; and the only question is
whether they are comfortable with her, or ought
to be given back to the father.
7. Interestingly, the father does not
seek interim custody of the younger child, who
is only 2½ years old, presumably because he is
also aware that it would be difficult for him to
do so. Therefore, if his contentions are to be
now accepted, the children will have to live
separately, which certainly is untenable,
particularly because they are very attached to
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each other, as we have recorded in our first
order dated 06.09.2024.
8. We thus put it to Sri.G.Sreekumar -
learned counsel for the appellant, if his client
would be agreeable to an arrangement, whereby,
he would obtain custody of the children for the
weekend; while, they would continue to be in the
custody of the mother for the rest of the week.
He responded, saying that, if such an
arrangement is thought of, then his client be
allowed the custody of both the children from 10
a.m. on Saturday each week; adding that, as
regards the younger one, he will return her to
the mother at 5 p.m. on that day, so that he can
continue with the custody of the elder son till
4 p.m. on the next Sunday.
9. The learned counsel for the
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respondent - Sri.K.Jagadeesh, conceded to the
afore arrangement.
10. We notice from the impugned order
that the learned Family Court has considered
every aspect in its proper perspective and has
granted the custody of the children to the
mother, with visitorial rights being reserved to
the father, as also interim custody to the
latter from 4 p.m. on every Saturday, till 5
p.m. on Sunday. However, as regards the younger
child, this may not be possible due to her age;
and we notice that the learned Family Court has
confined its order only to the elder son.
In the afore circumstances, with the
consent of both sides, we dispose of this Appeal
with the following directions, which are in
modification of the directives of the learned
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Family Court.
(a) The mother will continue to be in
interim custody of the children until the
learned Family Court takes a final decision in
O.P.No.771/2024.
(b) However, the direction (a) is subject
to the condition that the father will be granted
the interim custody of both the children from 10
a.m. on Saturday; and in the case of the younger
daughter, till 4 p.m. on that day, and as
regards the elder son, till 4 p.m. the ensuing
Sunday.
(c) As agreed to by both parties, the
exchange of the children shall take place at the
main gate of the house of the respondent - wife.
(Needless to say, we have not considered
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any of the rival contentions of the parties; and
all of them are left open, to be decided by the
learned Family Court, when the Original Petition
is finally disposed of; which we reiteratingly
clarify that it can do without being constrained
by the afore directions or by our observations
herein, however, as per law.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
akv JUDGE
