Arun Kumar.R vs Anuja V.R on 12 April, 2023

[Cites 5, Cited by 0]

Kerala High Court

Arun Kumar.R vs Anuja V.R on 12 April, 2023

The appellant is the petitioner in O.P.(G&W) No.1038 of 2022 on the file of the Family Court, Nedumangad. As per the judgment dated 27.09.2022, the Family Court dismissed that original petition, which is under challenge in this appeal filed under Section 19(1) of the Family Courts Act, 1984.

2. This appeal was admitted to file on 13.12.2022. Pursuant to notice, the respondent entered appearance through her learned counsel. On 21.12.2022, the appellant has filed I.A.No.1 of 2022 seeking interim custody of the minor, Vedhika A.Nair, aged 8 years now. He was granted interim custody of the child on 24.12.2022 from 10.00 a.m. to 5.00 p.m.

3. When the appeal came up for consideration on 11.04.2023, we directed both parties to personally present along with the minor child before Court at 10.15 a.m. on 12.04.2023. In terms of the said order, both parties personally appeared in court along with the child today (12.04.2023) at 10.15 a.m. We have interacted with both 3 Mat.Appeal No.870 of 2022 parties and the child. Thereafter, they were referred for counselling at the Family Counselling Centre under the Kerala High Court Legal Services committee. Both parties along with the child, after counselling, appeared again at 3.00 p.m. before us. We have interacted with them individually. We perused the report of the Counsellor placed before us in a sealed cover.

4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

5. The marriage of the appellant and the respondent was solemnised on 16.10.2011. Vedhika A.Nair is their child. Following estrangement in their marital relationship, their marriage was dissolved. The appellant had filed O.P.(G&W) No.881 of 2015 before the Family Court seeking to appoint him the legal guardian of the child and to give him custody. The parties had entered into a compromise and O.P.No.881 of 2015 was disposed of in terms of that compromise. The appellant was allowed to have interaction with the child on 1 st Saturday of every month between 10.00 a.m. and 4.00 p.m. 4 Mat.Appeal No.870 of 2022 There were allegations that the respondent was not complying with the stipulations in the said compromise decree. The appellant eventually has filed O.P.(G&W) No.1038 of 2022 in order to get the arrangement regarding custody of the child as per the decree in O.P.(G&W) No.881 of 2015 modified and to allow him to have permanent custody of the child. The respondent filed a detailed objection, wherein she refuted the allegations raised by the appellant. The respondent took the stand that there was no circumstance necessitating modification of the compromise decree. It was further contended that the intention behind filing the present original petition was to harass the respondent and that in order to safeguard the welfare of the child, her custody should be retained by the respondent.

6. The Family Court at the trial examined the appellant as PW1 and the respondent as DW1. Ext.A1, copy of the birth certificate of the child, was marked also. After hearing both sides, the Family Court took the view that there was no need to vary the stipulations in the compromise decree in O.P.(G&W) No.881 of 2015. The appellant besides 5 Mat.Appeal No.870 of 2022 claiming permanent custody of the child sought a decree of injunction restraining the respondent from taking the child away from the jurisdiction of the court and also from taking the child abroad. That relief also was declined holding that there was no reason to have such an apprehension.

7. The appellant is working in a company in a responsible position. The respondent is a College Lecturer. The child is now aged 8 years. She is studying in the III Standard. It appears that the child has some extracurricular activities of uploading programmes on YouTube. During interaction, the child, pointing out those reasons, expressed her hesitancy to go along with the father. She does not want to say away from her mother. The respondent also stated that all throughout the child has been with her and separating the child and sending her along with the appellant for overnight custody would result in mental trauma to the child.

8. The appellant stated that he wanted to take the child to a few Temples for performing some offerings, which he offered at the time of her birth and therefore he wanted custody of the child for a few days. That apart, he claims that 6 Mat.Appeal No.870 of 2022 being the father, he is entitled to have permanent custody of the child. Both the appellant and the respondent deposed before the court almost in terms of their contentions set out in their respective pleadings.

9. In Rohith Thammana Gowda v. State of Karnataka & others [AIR 2022 SC 3511] the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an enquiry regarding custody of children. The Apex Court also explained as to how far desire of the child has to be given importance and pleadings of the parties require consideration. It was held as follows:

"8. At the outset we may state that in a 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. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations 7 Mat.Appeal No.870 of 2022 against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned'. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits." (underline supplied)

10. There is already a decree regarding custody of the child, which was passed on the basis of the agreement entered into between the parties. As per the said decree, custody of the child has to be given to the appellant on 1 st Saturday of every month from 10.00 a.m. to 4.00 p.m. The respondent, who is in custody of the child, has no hesitation to comply with the said direction. In the light of the stand taken by both parties, we are of the view that the allegations set forth by them in their respective pleadings and evidence do not require detailed deliberation, as held by the Apex Court in the aforesaid decision. 8 Mat.Appeal No.870 of 2022

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

12. In Yashita Sahu (supra) the Apex Court noticed that a child, especially a child of tender years requires the love, affection, company, and protection of both parents. This 9 Mat.Appeal No.870 of 2022 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 10 Mat.Appeal No.870 of 2022 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.

13. In Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476] the Apex Court held that, whenever the court disturbs the custody of one parent, unless there are compelling reasons, the court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. xx xx xx The court cannot accept the submission that, while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.

Mat.Appeal No.870 of 2022

14. The child is now aged 8 years. In the light of the law laid down in the aforesaid decisions, the parents cannot claim custody of the child purporting it to be their right. Welfare of the child is of paramount consideration while deciding custody. Of course, the child is not interested in staying overnight along with the appellant. As held in Rohith Thammana Gowda (supra), the wish or desire of the child shall not be the sole guiding factor to decide the custody of a child. Love and affection from both parents are required for proper upbringing of the child. It is true that the appellant in connection with his employment has to travel extensively, but he is prepared to take care of the child. His parents are also available to take care of the affairs of the child. We emphasise that while giving such temporary custody, the parent, grandparents and all concerned shall take extra care to ensure child's comfort. They shall interact with the child with love and affect, and avoid rebukings and insinuations against the other parent, which will infuse or sense of insecurity and aversion in the mind of the child. In such circumstances, we are of the view that the decree in O.P.(G&W) No.881 of 2015 12 Mat.Appeal No.870 of 2022 shall not stand in the way of giving overnight custody of the child to the appellant.

15. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] the Apex Court held that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court if the welfare of the wards demands variation.

16. We are, therefore, of the view that the judgment under challenge requires interference. The appellant is entitled to get interim custody of the child on the 1 st and 3rd Saturdays and following Sundays during the period of school vacations and 1st Saturday and Sunday during Onam and Christmas holidays. During other periods, the stipulations in decree O.P.(G&W) No.881 of 2015 have to be followed. 13 Mat.Appeal No.870 of 2022

17. Accordingly, this appeal is disposed of by modifying the judgment dated 27.09.2022 in O.P.(G&W) No.1038 of 2022 and the custody of the child Vedhika A.Nair shall be given to the appellant,-

(i) from 10.00 a.m. on the 1st and 3rd Saturdays till 4.00 p.m. on the following Sunday during school vacation, namely, in April and May; and

(ii) from 10.00 a.m. on the 1st Saturday till 4.00 p.m. on the following Sunday during the Onam and Christmas holidays.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr 14 Mat.Appeal No.870 of 2022 APPENDIX OF MAT.APPEAL 870/2022 RESPONDENT ANNEXURES ANNEXURE R1(A) TRUE COPY OF THE JUDGMENT IN O.P. NO.

                     881/2015   OF    THE   FAMILY  COURT,
                     NEDUMANGAD DATED 23.05.2016.
ANNEXURE R1(B)       TRUE COPY OF THE ORDER PASSED BY THE
                     FAMILY COURT, NEDUMANGAD IN I.A NO.
                     1652/2016 IN O.P. NO. 881/2015 DATED
                     25.04.2017
ANNEXURE R1(C)       TRUE COPY OF THE JUDGMENT PASSED BY
                     THIS HONORABLE COURT IN O.P (F.C) NO.
                     711/2017 DATED 20.12.2017
ANNEXURE R1(D)       TRUE COPY OF THE ORDER PASSED BY THIS
                     HONORABLE COURT IN I.A NO. 607/2018 IN
                     O.P    (F.C)   NO.    711/2017   DATED
                     04.04.2018
ANNEXURE R1(E)       TRUE COPY OF I.A NO.1241/2018 IN O.P
                     (G&W) NO.932 OF 2018 FILED BY THE
                     PETITIONER BEFORE THE FAMILY COURT,
                     THIRUVANANTHAPURAM.
ANNEXURE R1(F)       TRUE COPY OF ORDER IN I.A NO.1241/
                     2018 IN O.P (G&W) NO.932 OF 2018
                     PASSED    BY    THE    FAMILY    COURT,

THIRUVANANTHAPURAM DATED 04.-01.2019.

ANNEXURE R1(G) TRUE COPY OF THE COMMON JUDGMENT PASSED BY THIS HONORABLE COURT IN O.P (F.C) NO. 131/2019 AND O.P (F.C) NO.171/2019 DATED 10.10.2019.

ANNEXURE R1(H) TRUE COPY OF THE ORDER PASSED BY THIS COURT IN R.P. NOS.152/2021 AND 331/2021 DATED 28.07.2021

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