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2015 Supreme(Ker) 637
IN THE HIGH COURT OF KERALAAT ERNAKULAM
C.K.ABDUL REHIM & ANIL K.NARENDRAN, JJ.
SANUMOL C C AND ORS. – Petitioner
Vs.
SUNNY P C – Respondents
O.P.(FC)No.280 OF 2015
Decided On : 26.06.2015
For the Petitioner: SRI. K.N. RADHAKRISHNAN (THIRUVALLA), SRI. CIRIL. T. EAPEN
Headnote:
Juvenile Justice (Care and Protection of Children) Act, 2000 - Sections 2(d), 2(j), 29 and 31 - Child - Guardian - Child Welfare Committee - Powers of Committee - Seeking set aside the order of the family court - Family court granted Children's custody un favour of father - Question of custody is the welfare and well-being of minor children - Family Court noticed that, though children were in custody of respondent-father they never made any complaint against their father to any of their relatives or authorities that, they were being ill-treated or harassed by their father - Elder son gave statement before Child Welfare Committee, that respondent-father used to manhandle him and his brother also noticed younger child was very happy with father and he was even ready to go along with father - Aforesaid finding of Family Court after interacting with children and recording statement of elder child, cannot be termed as a finding without any legal evidence, warranting any interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India - When Child Welfare Committee report found that children were subjected to physical and mental torture by respondent-father, Family Court ought not to have given their interim custody to respondent-father - Further Family Court brushed aside without any valid reasons statement given by elder son before Court, against respondent-father - Held, In selecting proper guardian of a minor, 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 even more important, essential and indispensable considerations - While deciding the question of custody is the welfare and well-being of the minor children and not the rights of their parents who are at loggerheads with each other - While dealing with such matters Family Court is not expected to blindly accept report of Child Welfare Committee or statement of the children recorded by Committee.
ANIL K.NARENDRAN , J.
The petitioners have filed this O.P.(FC) seeking an order to set aside Ext.P8 common order of the Family Court, Thiruvalla, dated 22.6.2015 in I.A.Nos.527 of 2015 and 596 of 2015 in O.P.(G&W) No.1179 of 2010.
2. The marriage between the 1st petitioner and the respondent was solemnised on 6.1.2001 at St.Catholic Church, Maloosserry, as per Christian religious rites and rituals. Out of the said wedlock, two male children were born to them, who are now aged 14 years and 10 years respectively. The 2nd and 3rd petitioners are their maternal grandparents. Due to difference of opinion, the 1st petitioner and the respondent are living separately. The 1st petitioner is working as a Staff Nurse in Saudi Arabia. The respondent is working as Peon in a Travel Agency at his native place.
3. The respondent filed O.P.(G&W)No.702 of 2010 before the Family Court, Kottayam, seeking an order to appoint him as the guardian of the minor children and for their custody. On the formation of the Family Court, Thiruvalla, the above original petition was transferred to that Court and renumbered as O.P. (G&W) No.1179 of 2010. The said original petition was compromised between the parties, in terms of the compromise recorded in I.A.No.526 of 2012. Ext.P2 is the compromise decree passed by the Family Court on 4.4.2012, in terms of the compromise so recorded.
4. In terms of Ext.P2, the permanent custody of the two children till they attain majority was given to the respondent. The 1st petitioner was given liberty to get temporary custody of the children for a period of 20 days in every year, during the period when she comes on leave from her workplace abroad. The 2nd and 3rd petitioners, the maternal grandparents, were given liberty to visit the children once in a month at the residence of the respondent. The 1st petitioner was also given liberty to visit the children at their parental home as and when she likes, after due notice to the respondent through her parents. Based on Ext.P2 compromise decree, the custody of the children was handed over to the respondent, on 4.4.2012.
5. On 11.4.2015, the 1st petitioner came on leave from Saudi Arabia. In terms of Ext.P2 compromise decree, the custody of the children was handed over to her on 19.4.2015, for a period of 20 days. On 10.5.2015 the 2nd and 3rd petitioners, the maternal grandparents, took the children to their paternal home, in order to handover their custody to the respondent. At that time the children requested the respondent to allow them to stay at their maternal home for four 4 more days and accordingly, he allowed the children to stay in their maternal home for 4 more days and thereafter, the respondent brought them back to their paternal home.
6. On 19.5.2015, the 'CHILD LINE', Kottayam submitted an urgent report before the Child Welfare Committee, Kottayam, stating that a 'SAVE CALL' was received on 'CHILD HELPLINE 1098' about the pathetic condition of the children of the 1st petitioner and the respondent, and the need for their emergency rescue. The Committee issued a 'rescue order' to the Child Line Co-ordinator and an 'assistance order' to the Sub Inspector of Police, Gandhinagar. After rescuing the children, a member of the Child Welfare Committee interacted with them and recorded their statement. Since the children declined to go with the respondent, they were accommodated in the Emmanuel Children Home, Parthumpara, and the 1st petitioner and the respondent were given notice to appear before the Committee on 20.5.2015. On that date, the Committee interacted with the children and their parents. The children expressed their desire to go with the 1st petitioner. Then the respondent produced copy of Ext.P2 compromise decree in O.P.(G&W)No.1179 of 2010. In such circumstances, the Child Welfare Committee submitted Ext.P3 report dated 25.5.2015, before the Family Court, Thiruvalla, in O.P.(G&W)No. 1179 of 2010.
7. The 1st petitioner-mother, along with her parents, filed I.A.
