Imam Grigorios Karat vs Jasna Shayala K on 12 April, 2023

[Cites 6, Cited by 0]

Kerala High Court

Imam Grigorios Karat vs Jasna Shayala K on 12 April, 2023

The appellant is the respondent in O.P.No.21 of 2020 on the file of the Family Court, Malappuram. The respondent herein has filed O.P.No.21 of 2020 for a decree allowing her permanent custody of the child Abrio Hamad Karat, who was born on 17.05.2014. The Family Court tried this original petition along with O.P.No.492 of 2020, which was filed by the appellant for a decree of divorce. As per the common judgment dated 30.10.2021, the Family Court allowed O.P.No.21 of 2020. Permanent custody of the child is allowed to be with the respondent. The appellant is allowed to have right of interaction between 10.00 a.m. on every second Saturday till 5.00 p.m. on the ensuing Sunday. The appellant was allowed to contact the child through audio/video call on every day also. The appellant assails the said decree since it denies him permanent custody of the child in this appeal filed under Section 19(1) of the Family Courts Act, 1984.

Mat.Appeal No.613 of 2021

2. On 02.11.2021, this appeal was admitted to file. Pursuant to notice, the respondent entered appearance through her learned counsel.

3. Various interim orders were passed by this Court regarding interim custody and visitation right of the appellant. As per the order dated 23.11.2021 following directions were issued regarding interim custody of the child:-

"We interacted with the parties yesterday (22.11.2021). The child is now with the mother respondent. Respondent is residing at Calicut. Appellant is residing at Ernakulam. The child is studying at Kendriya Vidyalaya, Calicut. Taking note of the facts and circumstances, we pass the following interim order:

(i) We allow the interim custody of the child Abrio to the appellant every Saturday at 04.00 p.m. to following Sunday at 05.00 p.m.

(ii) The appellant is also entitled to take custody of the child at 05.00 p.m. on Friday preceding every Second Saturday till following Sunday 05.00 p.m.

(iii) The appellant is also entitled to take custody of the child from 25.12.2021 at 05.00 p.m. till 02.01.2021 at 05.00 p.m.

(iv) Either the appellant or the appellant's father can obtain custody of the child as above, from the 4 Mat.Appeal No.613 of 2021 respondent.

(v) Child shall be handed over and returned from the residential house of the respondent."

4. On 04.04.2022, 20.06.2022, 29.09.2022, 10.10.2022 and 16.12.2022 this Court had passed orders allowing the appellant to have interim custody of the child for various periods. In terms of the order of this Court dated 15.03.2023, both parties appeared on 22.03.2023 before us in person along with the minor child. They were directed to appear before the Family Counselling Centre under the Kerala High Court Legal Services Committee for counselling with a direction to appear again before us at 4.30 p.m. on the same day. After counselling, both parties along with minor child appeared before us. The report of the Family Counsellor was made available for our perusal in sealed cover. We have perused the report and again interacted with the child and the parties.

5. Heard the learned Senior Counsel appeared on instructions for the appellant and the learned counsel appearing for the respondent.

Mat.Appeal No.613 of 2021

6. The respondent filed O.P.No.21 of 2020 with the allegation that the appellant, who retained in custody of the child without allowing the respondent even to interact with the child. Marriage of the appellant and respondent was solemnised on 17.12.2010 and the child was born on 17.05.2014. The appellant is an Advocate by profession. The respondent was pursuing her studies in nursing. After the birth of the child also the respondent has to attend her studies, namely, coaching classes. Eventually, she got an appointment as a Nurse in Jharkhand in December, 2016. She joined that employment. Soon, in January 2017 she got an appointment as Nurse in the State Health Services in Kerala and she returned from Jharkhand and joined that employment. Ever since January, 2017 she has been in Kerala. She however alleges that since February, 2016 the custody of the child has been retained by the appellant. Although the child was joined in a school at Manjeri, he was taken to Ernakulam along with grandparents under the guise that the appellant got an appointment as Government Pleader. 6 Mat.Appeal No.613 of 2021 The allegation of the respondent was that intention was to separate the child from her.

7. The appellant filed a detailed counter statement refuting all those allegations. According to the appellant, the respondent was not at all responsible in the matter of attending to the affairs of the child. She went to far away places abandoning the child and therefore appellate alone was there to look after affairs of the child. She had filed even a false police case alleging that the appellant illegally retained custody of the child. Following such a police complaint, the entire disputes were settled between them, but the respondent was not prepared to fulfill the terms of the agreement. It was in such circumstances, the respondent has filed O.P.No.21 of 2020 setting forth false contentions.

8. The Family Court at the joint trial examined the respondent as PW1 and the appellant as RW1. PW2 was also examined on the side of the respondent. Exts.A1 to A5, B1 to B41 and C1 were received in evidence. After appreciating the said evidence and hearing both sides, the Family Court held 7 Mat.Appeal No.613 of 2021 that custody of the child upto the age of 12 years should be with the mother. After assessing all the material aspects and attending circumstances, the Family Court ordered to hand over custody of the child to the respondent and the appellant was allowed to have interim custody during second Sunday and Saturday. He was also allowed to make audio/video calls to the child every day as well.

9. This Court in modification on the said arrangement, gave interim custody of the child to the appellant more often. There was no serious complaint regarding such interim custody. During interaction, we noticed that the child was not hesitant to go along with the father. In fact he has been willing to go along with his father. At the same time, the child expressed his desire not to move away from the custody of the mother.

10. In Rohith Thammana Gowda v. State of Karnataka and others [AIR 2022 SC 3511] the Apex Court held that if a parent who claims custody of a child is not unworthy of erious proven misconduct, the claim for custody 8 Mat.Appeal No.613 of 2021 shall be decided solely looking into the question as to, what would be the best interest of the child concerned. It was further held that it was absolutely unnecessary to discuss and deal with all the contentions and allegations in the respective pleadings and affidavits of the parties while deciding the question of custody of the child. In that view of the matter, we do not require to go in detail into the rival contentions; most of which are allegations and counter allegations.

11. The child is aged about 9 years now. He is studying at Kendriya Vidyalaya, Kozhikode. The respondent is working as a Nurse in the Government service at Kozhikode. She is residing along with her parents. In such circumstances, there cannot be any doubt that continuing the child with her mother at Kozhikode is appropriate. The appellant is now residing and working at Ernakulam. His parents are with him at Ernakulam. Therefore, it may not be difficult for the appellant to take the child along with him periodically and look after his affairs during such periods of stay.

Mat.Appeal No.613 of 2021

12. Both the appellant and the respondent remarried. As pointed out above, other members of their respective family are staying along with the appellant as well as the respondent. On a comparative analysis of all such aspects, we are of the view that welfare of the child can be best ensured by allowing him to stay along with the respondent and by giving periodical custody to the appellant.

13. The Apex Court in Nil Ratankundu and another v. Abhijit Kundu [(2008) 9 SCC 413] after referring to the principle laid down in Kamla Devi v. State of H.P. [AIR 1987 HP 34] held that principles governing custody of minor children is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In 10 Mat.Appeal No.613 of 2021 selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.

14. 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 11 Mat.Appeal No.613 of 2021 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.

15. 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 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 12 Mat.Appeal No.613 of 2021 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. 13 Mat.Appeal No.613 of 2021

16. 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 to have 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. (underline supplied)

17. In the light of the law laid down in the aforesaid decisions, it is not the right of the parents to have the custody of the child. The custody has to be decided bearing in mind as to what shall be in the best interest of the child. We have 14 Mat.Appeal No.613 of 2021 pointed out above, the circumstances of the appellants as well as the respondent. On considering the facts and circumstances of this case in the light of the law laid down in the aforesaid decisions, we find no reason to interfere with the view taken by the Family Court to allow permanent custody of the child to the respondent upto the age of 12 years.

18. The appeal is accordingly disposed of as follows:-

i) Permanent custody of the child till he attains the age of 12 years is given to the respondent;

ii) Interim custody of the child shall be given to the appellant on every second Saturday from 10.00 a.m. till 5.00 p.m. on ensuing Sunday;

iii) The appellant shall also be given interim custody of the child during second half of the school holidays/vacation having duration of more than five days;

iv) The appellant shall get and give back custody of the child from the residence of the respondent; and

v) The appellant shall have right to make audio/video call 15 Mat.Appeal No.613 of 2021 to the child every alternate day.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr 16 Mat.Appeal No.613 of 2021 APPENDIX OF MAT.APPEAL 613/2021 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE INTERIM ORDER OF THE FAMILY COURT, MALAPPURAM DATED 16.03.2021.

ANNEXURE A2 TRUE COPY OF THE MEDICATION PRESCRIBED FOR THE MINOR CHILD AND BILL DATED 20.11.2021.

ANNEXURE III CERTIFIED COPY OF THE COMPLAINT FILED BY THE RESPONDENT IN M.C.NO.21 OF 2022 ON THE FILES OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, KOZHIKODE.

ANNEXURE IV NOTICE FOR APPEARANCE DATED 24.03.2022 ISSUED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, KOZHIKODE TO THE PETITIONER.

ANNEXURE V NOTICE FOR APPEARANCE DATED 24.03.2022 ISSUED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, KOZHIKODE TO NAFLA KHADER.

ANNEXURE VI CERTIFIED COPY OF THE ORDER DATED 04.03.2022 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE-I, KOZHIKODE IN M.C.NO.21 OF 2022.

ANNEXURE VII TRUE COPY OF THE COMPLAINT AND THE RECEIPT DATED 30.07.2022 ISSUED BY THE CHEVAYOOR POLICE STATION.

ANNEXURE VIII PHOTOGRAPHS TAKEN BY ABRIO ON 05.08.2022 FROM THE APPELLANT'S PHONE.

Mat.Appeal No.613 of 2021 ANNEXURE IX PHOTOGRAPH OF THE ATTENDANCE SHEET DATED 06.08.2022 OF CLASS IIIB, KENDRIYA VIDYALAYA NO.1 KOZHIKODE.

Annexure X TRUE COPY OF THE CIRCULAR DATED 23.09.2022

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