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2023 Supreme(Online)(KER) 13154
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
RENJANA MATHEW
– Appellant
Versus
TONY CHERIAN – Respondent
OP (FC) 565 2022
LUKE J CHIRAYIL, M.G.SREEJITH, JOMY GEORGE, GEORGE R.PADMARAJ, M.J.BENNY, CHITRA N. DAS, RISHAB S., FATHIMA AFEEDA P., R.AJITH KUMAR, [V.K.EDOM]
Child welfare is paramount in custody disputes, requiring balanced consideration of parental rights and the child's need for contact with both parents.
Headnote:
Custody - Child Custody - Article 227 List - The court upheld the principle that child welfare is paramount in custody disputes. It modified interim custody arrangements to ensure the child's right to have contact with both parents while considering the allegations against the father.
Fact of the Case:
The respondent sought custody of his minor son, prompting the petitioner to challenge an interim order allowing video interaction and custodial rights during vacations. The petitioner raised concerns about the respondent's criminal behavior affecting custody rights.
Finding of the Court:
The court acknowledged ongoing investigations into the respondent's alleged crimes but emphasized that without proof of guilt, he could not be denied custody. It highlighted the importance of maintaining the child's relationship with both parents, modifying existing arrangements.
Issues: Whether the respondent should be granted interim custody and visitation rights in light of allegations against him.
Ratio Decidendi: The welfare of the child is the primary consideration in custody disputes, overriding personal rights of parents. Custody arrangements must ensure both parents can participate in the child's life unless compelling reasons dictate otherwise.
Final Decision: The petition was disposed of with a modified interim custody arrangement for the respondent.
J U D G M E N T
P.G.Ajithkumar, J.
O.P(G&W) No.1184 of 2021 was filed before the Family Court, Kottayam at Ettumanoor by the respondent seeking custody of his minor son, Heidan Sach Thomas born on 21.06.2018. He has filed I.A No.1 of 2021 for getting interim custody of the child. That interlocutory application was allowed by the Family Court as per the order dated 08.08.2022 thereby the respondent was allowed to interact with the child every alternate day between 4.00 p.m and 6.00 p.m through video call and interim custody of the child during vacation. Ext.P8 is the said order. The petitioner, aggrieved of that order has filed this original petition under Article 227 of the Constitution of India .
2. On 29.09.2022, notice was directed to be served on the respondent and further proceedings in O.P.No.1184 of 2021 on the file of the Family Court, Kottayam at Ettumanoor pursuant to Ext.P8 order was stayed for a period of one month. Respondent entered appearance and filed a counter affidavit producing therewith Ext.R1(a).
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. Marriage between the petitioner and the respondent was solemnised on 22.05.2017. Their marital relationship was strained resulting in filing O.P.No.1166 of 2021 by the respondent seeking dissolution of marriage. The petitioner filed O.P.No.419 of 2022 for a decree of return of gold ornaments and realisation of money. I.A No.1 of 2021 filed by the respondent in O.P.(G&W) No.1184 of 2021 was resisted by the petitioner. The Family Court however allowed the respondent to have interim custody of the child during vacation and right of interaction through video call every alternate day. The petitioner would contend that the character of the respondent is such that he cannot be given custody of the child. Petitioner has produced Exts.P4, P5 and P7 which are copies of First Information Reports to show that the respondent was involved in serious crimes. In that context she contend that to fortify her contention that the respondent is disentitled to claim custody of the child.
5. The learned counsel appearing for the respondent would submit that those crimes particularly, the one pertaining to Ext.P4, were manipulated ones and the respondent did not commit any such offence. The learned counsel appearing for the respondent also pointed out that the petitioner has filed a petition before the Apex Court for transferring the petitions for divorce as well as custody of the child to a court at Bangalore and as per Ext.R1(a) order the Apex court stayed the proceedings in those petitions. Ext.R1(a) however does not stay the proceedings in the custody matter.
6. True, there are allegations that the respondent involved in criminal cases including the one with allegation of commission of rape. The learned counsel appearing for the petitioner would submit that the stand taken by the respondent while he sought bail in Crime No.1456 of 2022 of Kottayam police station was that the alleged act of sexual intercourse was a consensual one, whereas in the counter affidavit filed in this Court, he denied very occurrence of such an incident. The learned counsel for the petitioner would contend that the said inconsistent stand itself is enough to deny him custody of the child.
7. Investigation into the offences allegedly committed by the respondent is going on. At this stage, there cannot be a finding that the respondent is guilty and he is ineligible to claim custody of the child. Marriage between the petitioner and the respondent still persists. The child is aged only 4½ years. In such circumstances, the child cannot be completely detached from the respondent-father. It is the right of every child to have company of both the father and mother.
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 par
