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2023 Supreme(Online)(KER) 12533
HIGH COURT OF KERALA
AMIT RAWAL, C.S. Sudha, JJ
JISHA – Appellant
Versus
PRATHEESH – Respondent
OP (FC) 563 2023
P.DALBI, EMMANUEL JOSMY P. THOMAS, SUNIL C.G
Custody arrangements must prioritize children's welfare and be based on thorough evaluations rather than presumptions about parental fitness.
Headnote:
Custody - Children - Family Courts Act Section List - The court evaluated the best interests of the children in custody proceedings, emphasizing consultations and reports prior to decisions, impacting visitation arrangements by prioritizing child welfare over procedural strictures.
Fact of the Case:
The petition contests a custody order granting interim custody of two children to their father, based on a prior divorce agreement. Allegations arose regarding the conditions under which the father took custody. The mother challenged the legitimacy of this arrangement citing the children's needs.
Issues: The primary issues revolved around the interim custody arrangement, the adequacy of the visitation rights based on the children’s needs, and allegations of parental misconduct.
Ratio Decidendi: The court reiterated that custody determinations must focus primarily on the children's welfare, necessitating direct engagement with the children's preferences and surroundings.
Final Decision: The interim custody order was upheld but modified to facilitate visitation at a neutral location.
JUDGMENT
AMIT RAWAL J
1. The present petition is directed against the order dated 26.07.2023 in I.A. No.2 of 2023 in O.P.No.705 of 2023 whereby the interim custody of the children aged 7 and 13 years was given to the father and the mother was permitted to meet them on second Saturday of every month before the Family Court by
10.30 p.m. to 12.30 p.m.
2. The marriage between the husband and wife was performed on 31.03.2008 according to the Hindu Customary rites and after that they lived together as husband and wife. Two children now aged at 7 and 13 were born out of the marriage. Due to the difference of opinion the relationship between the parties strained and started living separate from 01.05.2019. Parties have entered into a compromise vide agreement dated 26.05.2023 and on the basis of that, Family Court vide decree dated 29.05.2023 in Original Petition No.438 of
2023 granted divorce.
3. Learned counsel appearing on behalf of the petitioner submitted that the agreement dated 26.05.2023 clearly stated that minor children were residing with the wife. Children continued to live with the petitioner but however in the month of June, 2023 were forcibly taken by the husband who is stated to have informed the Police. Husband thereafter filed a petition for seeking permanent custody. It is in those proceedings various interlocutory applications were filed and in I.A.No.2 interim custody was given to the husband. The order of the trial court is wholly erroneous and illegal/perverse for the reason that the interest of the children has not been kept intact as the elder child, a girl of thirteen(13) years, requires the constant contact with the mother. Petitioner mother is living separately and is working. Visitation rights as a temporary arrangement have been given only for second Saturday, ought to have been given more than two days in a month. The allegation with regard to the complaint of the mother of the petitioner is neither here and there, could not have relied upon the same as it was subject to mode of proof and the said burden could have been discharged only at the time of evidence or subject to the cross examination.
Therefore the impugned order be set aside.
3. We have heard learned counsel for the petitioner and appraised the paper book and of the view that there is no force and merit in the submission, for, the court while dealing with the application for interim custody, had a consultation with the children and before that the matter was sent to the counselor. Counselor also submitted a report and as per the report and consultation of the judge, children were found to be more comfortable in the custody of respondent husband. On the basis of the information given by the mother of the petitioner, taken the child from her custody as they were being allegedly tortured. Petitioner does not have any means to meet the education expenses whereas the husband has. It is in that background the trial court ordered the interim visitation/custody of the children on second Saturday of every month before the Family Court by 10.30 am and also access to the children till 12.30 p.m from the court premises.
4. We have come across many orders where the custody of the children or visitation rights are being given from the court premises. Bringing the children to the court and also giving the custody in such environment would not be conducive for the growth of the children. At the best the court should pass an order for meeting the children subject to convenience of parties.
5. Accordingly we uphold the order except with a modification that the visitation rights granted on second Saturday of every month should not be before the Family Court but at a convenient place at the same time, i.e., exactly from 10.30 a.m. to 12.30 p.m. Parties are at liberty to lead evidence in support of the allegations made for the purpose of adjudication of the petition seeking permanent custody.
Original petition stands disposed off.
Sd/-
AMIT RAWAL JUDGE Sd/-
C.S. SUDHA JUDG
