IMPORTANT POINT
The children are of tender age and school going. The respondent and her parents are available at home to look after the welfare of the children. There is no incriminating material disqualifying the respondent from having the permanent custody of the children. The Family Court has rightly balanced the rights of the parents and the welfare of the children by granting the respondent permanent custody of the children with visitation rights to the appellant. We are satisfied that the paramount welfare and better interest of the children would be secured if they are permitted to be in the permanent custody of the respondent by reserving the visitation rights of the appellant.

JUDGMENT :

C.S.DIAS, J.

“Co-parenting. It’s not a competition between the two homes. It’s a collaboration between the parents in doing what is best for the children” – Heather Hetchler.

1. The appellant had sought to declare him as the legal guardian of his minor children, born in the wedlock with the respondent.

2. The appellant had averred in O.P.No.635/2018 filed before the Family Court, that his marital felicity with the respondent was short-lived. He realised that the respondent had perpetrated a fraud on him in getting his consent for the marriage: she had suppressed about her congenital mental illness. If the children are permitted to live with the respondent, it would affect their paramount welfare and best interest. The appellant is ready to look after to the children. He being their natural guardian is willing to provide them with the best of education, which would be beneficial for their physical and mental development. The appellant is paying the respondent and the children monthly maintenance allowance at the rate of Rs.7,000/-per month, as ordered by Court. The appellant is ready to take complete responsibility of the children. He prayed that the original petition be allowed.

3. The respondent denied the allegations in the original petition and contended that, if the children are permitted to live with the appellant, it will affect their welfare and best interest. The children are aged only five years and four years. They require constant care and protection of the respondent. The appellant is a drunkard. He has frequently harassed the children while in an inebriated state. He is not in a position to look after to the welfare of the children. Hence, the original petition may be dismissed.

4. During the pendency of the proceedings, the appellant sought interim custody of the children during weekends and the school holidays. The Family Court allowed the appellant to have interim custody of the children on the first Saturday of every month from 10.00 a.m. to 3.00 p.m.

5. Dissatisfied with the order, the appellant had filed O.P (FC) 82/2019 before this Court. This Court, by its judgment dated 30.7.2019, modified the impugned order and granted the appellant interim custody of the children from 10.00 a.m. on the last Saturday of every month till 4.00 p.m. on the ensuing Sunday.

6. The appellant had also filed O.P.No.36/2018, seeking a decree of divorce, to dissolve his marriage with the respondent, on the ground of cruelty as provided under Sec.13 (1) (ia) of the Hindu Marriage Act,

7. The Family Court consolidated and jointly tried O.P.No. 635/2018 and O.P.No.36/2018.

8. The appellant and a witness were examined as PWs 1 and 2. Exts.A-1 (a) and A-1 (b) were marked through them. The respondent and two witnesses were examined as RWs 1 to 3.

9. The Family Court, by a common judgment, dismissed O.P No.36/2018 and partly allowed O.P No.635/2018.

10. The Family Court by impugned judgment disallowed the appellant’s claim for guardianship and permanent custody but granted him visitation rights; to see and interact with the children on the first Saturday of every month between 10.30 a.m. and 3.30 p.m; for five days every year during Onam and Christmas vacations; and for a fortnight during the summer vacation.

11. Aggrieved by the impugned judgment, this appeal is filed.

12. During the pendency of this appeal, the appellant filed I.A No.2/2020, seeking interim overnight custody of the children on every second and last Saturdays of the month. The application was opposed by the respondent.

13. When the application was taken up for hearing, as the lis in the appeal and the application are identical, i.e., the appellant's right to have custody of the children, with the consent of the counsel for both parties, we decided to hear the appeal itself.

14. The learned counsel for the appellant brought to our notice that as against the judgment in O.P No.36/2018, Mat. Appeal No.170 of 2020 is pending consideration. We make it clear that the disposal of t