The Kerala High Court recently comprising of a bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar reiterated that children have right to company of both parents and severing contact with one parent snaps emotional and psychological bond. (Neena George V. Alwin K. Jacob & Ors.).
The bench noted, “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.”
Facts of the case
In the present case, owing a matrimonial discord, the Petitioner-mother had sought the custody of her girl child. The Family Court while allowing her application, directed her to give interim custody of the child to her father from 10.30 am on all 2nd Saturdays till 4 pm on ensuing Sundays, at the premises of the Family Court, Ettumanoor. It was further directed that interim custody shall be granted from 10.30 am to 4 pm on all Sundays except Second Sundays, in the premises of the Family Court, Ettumanoor, and that the father would be permitted to interact with the minor child through video call between 6.30 pm and 7 pm on all Wednesdays.
The learned counsel appearing for the petitioner submitted that when the child was given in custody of the respondents, at the premises of the Family Court, not only the respondents, but a few others also interacted with the child whereupon it got tired and exhausted. No doubt, such things resulting in stress and strain to the child should not have happened. It is further contended that the only holiday available to the petitioner is Sunday and when she has to take the child to the Family Court for giving custody to the 1st respondent, it causes much inconvenience to her.
Courts observation and judgment
The bench at the very outset referred to the judgment passed by the apex court in the case of Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67].observed, “In Yashita Sahu the Apex Court held that law is well settled by a catena of judgments 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.”
The bench further noted, “the Apex Court noticed 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”
Th bench dismissing the petition remarked, “It is seen that the Family Court has taken into consideration all such parameters while passing Ext.P4 order. It is no doubt, the welfare of the child is of prime consideration. If the child is denied the opportunity to interact with the father, it certainly will cause snapping of the emotional and psychological bondage with the father and the child. While the child is allowed to be with the mother, there shall be an opportunity for the father to have frequent interaction with the child. Viewed so, we find no reason to interfere with the impugned order. The inconvenience said to be occasioned to the petitioner by traveling to the Family Court, a short distance, cannot be a reason to deny the father the opportunity to interact with the child.”
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