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2021 Supreme(Online)(KER) 38408
HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
JEPHIN.E.EAPEN – Appellant
Versus
NITHA ANU ABRAHAM – Respondent
Mat.Appeal/129/2020
BABU CHERUKARA, SRI.P.A.SALIM, SHRI.ARUN BABU, SHRI.ALBERT ABEY V.S., SHRI.MATHEW C.T
Child custody decisions must prioritize the welfare of the child, considering the loving environment and opportunities for growth, over financial claims of the parents.
Headnote:
Custody - Guardian and Wards Act - 0.566, 0.826 - The Family Court granted custody to the mother, assessing the child's welfare as paramount, emphasizing maternal bonding and stability in education, whilst providing visitation rights to the father.
Fact of the Case:
The appellant and respondent are parents of a minor child and sought permanent custody amid a backdrop of marital discord, with the Family Court favoring the mother for custody due to her capability to provide a better living and educational environment.
Issues: Whether the child's custody should be awarded to the mother or the father, considering their financial stability, parental capability, and child's welfare.
Ratio Decidendi: The court underscored the importance of the child's welfare over the parents' claims, prioritizing the need for maternal affection and stability in upbringing.
Final Decision: The appeals were dismissed, affirming the Family Court's order for the mother to have custody of the child.
J U D G M E N T
Sophy Thomas, J.
The appellant Sri.Jephin K Eapen is the father and the respondent Smt.Nitha Anu Abraham is the mother of the minor child Jeev Jephin. The appellant filed these appeals against the judgment and decree in O.P No.566 of 2017 and O.P No.826 of 2017 on the file of Family Court, Kottayam at Ettumanoor. He filed O.P No.826 of 2017 and the respondent filed O.P No.566 of 2017, both for getting permanent custody of the minor child. The Family Court allowed O.P No.566 of 2017 declaring the respondent-wife as the guardian of the minor child. She was given permanent custody of the child, with permission to take the child abroad with her, reserving visitation rights for the appellant- father. O.P No.826 of 2017 filed by the appellant-husband was dismissed. Assailing the impugned judgment and decree in O.P No.566 of 2017, he has preferred Mat.Appeal No.129 of 2020, and against the judgment and decree in O.P No.826 of 2017, he has preferred Mat.Appeal No.292 of 2020.
2. The marriage between the appellant and respondent was solemnised on 27.08.2012 as per Christian rites and ceremonies. The minor Jeev Jephin was born in their wedlock on 17.05.2015. Due to marital discord, they got separated and the minor child was with the respondent-mother. Later, as per the judgment in O.P No.564 of 2017, their marriage was dissolved. Now, the respondent-wife is working in Germany, and since the appellant- husband filed Mat.Appeal and obtained stay order against operation of the judgment and decree in O.P No. 566 of 2017, the respondent-mother could not take the child to Germany, and now the child is residing with its maternal grandparents.
3. The appellant is assailing the impugned judgments on three grounds;
(i) If the child is taken to Germany by the respondent-mother, the child will be deprived of the paternal love and care for ever.
(ii) The respondent-mother is having some mental depression and so, she is not capable of attending the welfare and well-being of the child.
(iii) The appellant is financially stable compared to the respondent, and he is capable of giving quality education to the child.
4. The Family Court, Kottayam tried O.P No.566 of 2017 and O.P No.826 of 2017 jointly with O.P. No.564 of 2017 and O.P.No.565 of 2017, and a common judgment was delivered on 31.12.2019. PWs 1 to 7 were examined and Exts.A1 to A27 were marked from the side of the wife. RWs 1 to 3 were examined and Exts.B1 to B63 were marked from the side of the husband.
Exts.C1 and C1(a) were marked as court exhibits.
5. The grounds taken up by the appellant in these Mat.Appeals were seen agitated before the Family Court also. After evaluating the facts and evidence, the Family Court found that the minor child Jeev Jephin being a little child aged only five years, was eagerly waiting to join his mother abroad and he expressed his desire to be with his mother. After analysing the evidence, the Family Court found that, considering the welfare and well-being of the child, it was better for the child to be with his mother and accordingly, the mother was declared as the guardian of the child and permanent custody was also given to her, with permission to take the child abroad.
6. Now let us scrutinise the impugned judgments in the light of the available evidence to find out whether there is any illegality or impropriety warranting interference by this Court.
7. Admittedly, the marriage between the appellant and the respondent was dissolved by a decree of Family Court, Kottayam at Ettumanoor. The minor Jeev Jephin is the only child born in their wedlock, and now he is only six years old. The respondent- wife is working as a Staff Nurse in Germany and she is ready and willing to take the child to Germany with her where she could provide all facilities to the child including his education. According to her, German Government is providing so many amenities to working mothers, and free education and medical assistance is being given to children apart from other fina
