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KERALA HIGH COURT
Anil K. Narendran and P.G. Ajithkumar, JJ.
Ratheesh C.C. – Petitioner
versus
Vijaya V.F. – Respondent
OP (FC) No.525 of 2022
Decided on 1.3.2023
For the Petitioner:K.M. Muhammed Hussain, T.K. Vipindas, K.V. Sree Vinayakan, Advocates
For the Respondent:V.V. Joy, Lekshmi P. Nair (K/001011/2017), Advocates
IMPORTANT POINT
Custody of Minor Children – While deciding matters of custody of a child, primary and paramount consideration is welfare of child – If welfare of child so demands then technical objections cannot come in the way.
Headnote:
(A) Family Law – Custody of Minor Children – While deciding matters of custody of a child, primary and paramount consideration is welfare of child – If welfare of child so demands then technical objections cannot come in the way – However, while deciding welfare of child it is not the view of one spouse alone which has to be taken into consideration – Courts should decide issue of custody only on the basis of what is in best interest of child – A child is not an inanimate object which can be tossed from one parent to other – A child has a human right to have love and affection of both parents and courts must pass orders ensuring that child is not totally deprived of love, affection and company of one of her/his parents – Petitioner-father shall handover custody of minor children to respondent-mother. (Paras 8, 9 and 18)
(B) Constitution of India – Article 227 – Power of superintendence – In proceedings under Article 227 of Constitution of India, High Court cannot sit in appeal over findings recorded by lower court or tribunal – Jurisdiction of High Court is only supervisory in nature and not that of an appellate court – No interference under Article 227 of Constitution is called for unless High Court finds that lower court or tribunal has committed manifest error, or reasoning is palpably perverse or patently unreasonable, or decision of lower court or tribunal is in direct conflict with settled principles of law. (Para 16)
Result: Original Petition allowed.
JUDGMENT
Anil K. Narendran, J.—The petitioner is the respondent-father in G.O.P.No.116 of 2022 on the file of the Family Court, Thrissur, which is one filed by the respondent herein-mother, seeking custody of the minor children namely, Sayangadami aged 13 years and Sairam aged 11 years. In that original petition, the respondent filed I.A.No.2 of 2022, an application for interim custody of the minor children. The petitioner-father filed objection, opposing the relief sought for in that interlocutory application. After considering the rival contentions, the Family Court by Ext.P5 order dated 29.08.2022 allowed that interlocutory application and the petitioner-father was directed to handover interim custody of both minor children to the respondent-mother at 10.00 a.m. on 05.09.2022. As per that order, the father shall be entitled to get custody of both the minor children from 10.00 a.m. on every second Saturday, till 4.00 p.m. on the following Sunday, and also during first five days of Onam and Christmas vacations (except the Onam vacation of 2022) and also during first ten days of April and May in the summer vacations. Feeling aggrieved by the said order of the Family Court, the petitioner-father is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
2. On 13.09.2022, when this original petition came up for admission, this Court admitted the matter on file and issued notice by special messenger to the respondent. This Court granted an interim stay of operation of Ext.P5 order till 19.09.2022.
3. On 23.12.2022, in I.A.No.2 of 2022, this Court granted an interim order regarding interim custody of the minor children during Christmas vacation of 2022, which reads thus;
“As agreed by the learned counsel on both sides, there will be an interim order granting interim custody of the minor children during the Christmas vacation to the petitioner, who shall take custody of the minor children on 25.12.2022 at 11.00 a.m., from the premises of the Family Court, Thrissur. The petitioner shall return the children on 31.12.2022 at 11.00 a.m., at the very same place.”
4. The respondent-mother has filed I.A.No.1 of 2022, seeking an order to vacate the interim order granted on 13.09.2022.
5. Today, when the matter is taken up for consideration, the petitioner-father has filed a counter affidavit in I.A.No.1 of 2022.
6. Heard the learned counsel for the petitioner-father and also the learned counsel for the respondent-mother.
7. The issue that requires consideration in this original petition is as to whether any interference is warranted on Ext.P5 order of the Family Court dated 29.08.2022 in I.A.No.2 of 2022 in G.O.P.No.116 of 2022, whereby the interim custody of the minor children is granted to the mother, subject to the overnight custody granted to the petitioner-father from 10.00 a.m. on every second Saturday, till 4.00 p.m. on the following Sunday, for five days during Onam and Christmas vacations and the first ten days of April and May, during summer vacations.
8. 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 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 t
