Point of Law: While deciding matters of custody of a child, primary and paramount consideration is welfare of child.

JUDGMENT :

P.G. Ajithkumar, J.

The petitioner filed G.O.P.No.156 of 2021 before the Family Court, Thrissur for a decree allowing him permanent custody of his minor son Abhay Krishna, aged 16 years. The minor was in the custody of the respondent-mother. The petitioner has filed I.A.No.2 of 2021 for an order directing the respondent to give interim custody of the child to him from Friday to Sunday every week. Ext.P5 is a copy of that petition. Respondent filed detailed objection contending that since the petitioner has been maintaining illicit relationship with another woman, he is not entitled interim custody of the child. It is further contended that considering the obesity and connected disableness of the child, no overnight custody can be given to the petitioner.

2. The Family Court heard both sides and interacted with the child, who was brought to the Family Court. The desire of the child was ascertained. The Family Court after taking into account the case set forth by both sides, and also the opinion of the child, allowed I.A.No.2 of 2021 to the extent of allowing the petitioner to have visitation right from 10.00 a.m. to 12.00 noon on every second Saturday. The respondent was allowed to suggest a suitable place for visitation. The petitioner is aggrieved of the said arrangements and hence he filed this Original Petition under Article 227 of the Constitution of India

3. Considering the submissions of the learned counsel on either side, this Court on 17.10.2022 directed the Secretary, Taluk Legal Services Committee, Chavakkad to submit a report, after visiting the child, regarding his limitations for movement and such other circumstances. In obedience to the said direction, the Secretary, Taluk Legal Services Committee, Chavakkad went to the school, where the child is studying, and after personally verifying the physical condition of the child and conveniences available for his studies submitted a report, which was forwarded to this Court by the Chairman of the Taluk Legal Services Committee. On 28.10.2022, the learned counsel appearing on either side submitted that the child was taken to a Mall at Valappad for enabling the petitioner to have interaction. In the light of the submissions of the learned counsel on either side and also the report of the Secretary of the Legal Services Committee, Chavakkad, on 03.11.2022 we directed the child to attend the proceedings of the Court online on 10.11.2022 at 5 p.m. In terms of that order, the child appeared online before the Court. Both petitioner and respondents also appeared. The proceedings were held in-camera.

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

5. The petitioner and respondent were living as husband and wife till 2020. The petitioner alleges that without sufficient reason, the respondent along with the child left from his companionship. The respondent contends that the petitioner maintains an extramarital relationship with another woman and that is the reason why their cohabitation could not continue. The petitioner has filed G.O.P.No.156 of 2021 for getting permanent custody of the child, who is now aged 16 years. He is studying in Std.X now in Bharathiya Vidyabhavan School, Valappad. The contention of the petitioner is that the respondent is not permitting him to visit the child.

6. During our interaction, the child expressed the desire to stay with his mother, the respondent. Child has obesity and limitations to move freely. It is seen that he has to use wheelchair often for his movements. From the report of the Secretary, Taluk Legal Services Committee, it is seen that special arrangements were made in the school to suit his convenience. The respondent needs to reach the school at noon to help the child in his daily pursuits. The learned Judge, Family Court, after personally seeing and interacting with the child, took the view that overnight custody could not be given to the petitioner in the present circ