Dr.Dilna.M vs Dr.P.Sarat Chandran on 4 April, 2024

[Cites 3, Cited by 0]

Kerala High Court

Dr.Dilna.M vs Dr.P.Sarat Chandran on 4 April, 2024

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. Mat Appeal No.579 of 2023 3

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 Mat Appeal No.579 of 2023 4 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 Mat Appeal No.579 of 2023 5 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 Mat Appeal No.579 of 2023 6 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. Mat Appeal No.579 of 2023 7

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 Mat Appeal No.579 of 2023 8 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. Mat Appeal No.579 of 2023 9

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 Mat Appeal No.579 of 2023 10 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. Mat Appeal No.579 of 2023 11 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 1 Rohith Thammana Gowda v. State of Karnataka & others [AIR 2022 SC 3511] Mat Appeal No.579 of 2023 12 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 2 Yashita Sahu v. State of Rajasthan [2020 (3) SCC 67] Mat Appeal No.579 of 2023 13 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 Mat Appeal No.579 of 2023 14 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 Mat Appeal No.579 of 2023 15 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 Mat Appeal No.579 of 2023 16 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.

Mat Appeal No.579 of 2023 17

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, Mat Appeal No.579 of 2023 18 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 Mat Appeal No.579 of 2023 19 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.

Mat Appeal No.579 of 2023 20

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

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