JUDGMENT

Devan Ramachandran, J.

The petitioner impugns Ext.P7 order to the extent to which the learned Family Court, Kunnamkulam, has allowed her child to be in the interim custody of the respondent - father from 10 a.m on Saturdays till 5 p.m on the following Sundays; and for the first half of the Christmas, Onam and mid-summer vacations.

2. It is the specific case of the petitioner, as argued by her learned Counsel - Sri.Jazil Dev Ferdinanto, that when the learned Family Court found the child to be reluctant to go to the father and even cried when asked her to do so, it was improper for it to have granted overnight custody without further interaction, after the day visitation which is reserved in the order. He asserted that, according to his client, the child is unwilling to go to the father for any overnight arrangement and that she is uncomfortable even during day visitations; and, therefore, that Ext.P7 suffers from the vice of non-application of mind.

3. Sri.C.Dheeraj Rajan, learned Counsel for the respondent – father, however, submitted that the afore contentions of the petitioner are without basis and that the child was totally comfortable with his client during the time when the Court interacted with her. He added that, after the day time visitation reserved to his client on 19.09.2024, 20.09.2024 & 21.09.2024, the child has now become wholly comfortable and is ready to go with him for an overnight custody. He thus prayed that Ext.P7 be left uninterdicted; further arguing that the intention behind the said order is obvious that both the parents should have equal rights over the children, at least for the purpose of parenting.

4. We have no doubt that the afore submissions of the respondent, namely that both the parents must have adequate and equal time and rights with and over the child, is without any error. However, the question is also whether the child is comfortable.

5. When we examine Ext.P7, it is evident from paragraph 5 thereof that the learned Judge also found, on interaction with the child on 31.08.2024, that she was reluctant to go to her father and was crying; but the learned Judge then immediately entered into an opinion that the “child appeared to be tutored”. Thereafter, the learned Court had recorded that the child was clinging to the mother and then proceeded to say that, for an emotional bonding with the father, she requires to interact with him and then to be given overnight custody.

6. Even here, we do not find any error in the ratiocination of the learned Judge.

7. However, we are of the view that, after the day time interaction was complete, the learned Judge ought to have interacted with the child again, to verify whether she was comfortable for an overnight arrangement with the father, and not to have made a composite arrangement for such in Ext.P7 order itself.

8. In such perspective, we are certain that the matter will require to be sent back to the learned Family Court for a further interaction with the child, so that her intentions and her comfort with the father can be then better ascertained, particularly after her interaction with the latter, as ordered in Ext.P7.

9. We are sure that this will not cause any prejudice to the father either, because, if, through further interaction, the learned Family Court is to find that the child is comfortable to go with the father on an overnight arrangement, it will certainly be competent to make appropriate orders as per law.

10. In the above circumstances, we allow this Original Petition and set aside Ext.P7 order, however, only to the extent to which it has allowed the interim overnight custody to the father over the child; with a consequential direction to it to reconsider such aspect, after an interaction with the child again; thus culminating in an appropriate fresh order, as expeditiously as is possible.

11. Needless to say, until such time as the afore is done, and as acceded to by the mother, the father will be given day time custody of the child from 1