IMPORTANT POINTS
The details of chatting and video calling would reveal that the petitioner is not giving peaceful life to the child and causing mental stress during night hours, while she is in the custody of the respondent, who is none other than her father. The intention of the petitioner is to give evidence before the court that the life of ward at the residence of respondent is in danger. Such a dramatic acts of the petitioner cannot be looked into. It is pertinent to note that the child lost her peaceful life along with her parents.

JUDGMENT :

ANNIE JOHN, J.

1. The petitioner, the wife of the respondent, filed Ext.P3 MC under the Protection of Women from Domestic Violence Act, 2005 and sought for a protection order and compensation for Rs. 3 crores. She has also filed a petition for return of gold ornaments. The respondent/husband has filed OP under the Guardian and Wards Act for appointing him as the guardian of the minor child and to hand over custody. The Family Court, as per Ext.P5, was pleased to order only the access of the child in the court premises. He has challenged Ext.P5 before this Court and this Court, by Ext.P6 judgment directed the court below to pass a reasoned order after ascertaining the factual aspects. In the light of Ext.P6, the court below was bound to consider the factual contentions with regard to the safety of the child, if the child is handed over to the respondent. But, later GOP No. 1501 of 2016 was dismissed for default and thereafter this Court, by a common judgment in OP (FC) Nos. 341 and 393 of 2019, remanded the matter and after condonation of delay, GOP No. 1501 of 2016 was restored. I.A. Nos. 4810 and 4184 of 2019, which were filed seeking custody during Onam vacation and the custody pending disposal of the OP, were also allowed by the court below by the impugned order under Ext.P16. Highly aggrieved by the same, this OP (FC) has been filed.

2. The learned counsel for the petitioner contends that there is eminent threat to the safety of the child, if overnight custody is granted to the respondent and that the issuance of Ext.P16 order is illegal and arbitrary.

3. When the matter was taken up for hearing, the learned counsel appearing for both the parties argued strenuously and according to the learned counsel for the petitioner, the order passed by the court below is illegal and unjust. He has further submitted that overnight custody of the child may be avoided and the petitioner has no objection in handing over the custody of the child during the day time.

4. After hearing the learned counsel, we understood that the grievance of the petitioner against the order passed by the Family Court below is regarding the overnight custody given to the respondent. In this connection, we have gone through the reliefs portion granted by the court below and we find that the petitioner was directed to give custody of the child "Avantika" to the respondent at 6 p.m. on every Fridays preceding second Saturdays and the respondent shall return the child at 4.30 p.m. on the ensuing Sundays. It was also ordered that the respondent is entitled to have custody of the child for the first five days each during Onam and Christmas holidays and first half of summer vacation. Over and above, it was also ordered to the respondent to permit the child to have video call with the petitioner daily while in custody. The petitioner has also produced certain documents before us to prove that the overnight custody which was given to the respondent created lots of problems and the details of chatting and video calling were produced before this Court. We could understand that the petitioner is watching the child apprehensively in each and every moment, when the child was in the custody of the respondent, the father of the child. Even during night hours also, the petitioner was watching the child and causing mental stress and panic to her as evidenced from the chatting details. During argument, both sides conceded to the fact that the petitioner has become panic and tensed. Hence, she has called the police, sent them to the respondent's residence and created dramatic scene over there during night hours, which should have avoided by her. In this connection, it is pertinent to extract the following decisions.

5. In Nil Ratan Kundu and Another vs. Abhijit Kundu, (2008) 9 SCC 413, it is held that a child is not "property" or "commodity" and such issues should be handled with love, affection, sentiments and applying human touch to the problem.

6. In Tejaswini Gaud and Oth