The court established that in custody cases, the child's welfare is paramount, permitting inquiries into parental fitness based on mental health when substantiated by evidence.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &

THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942 OP (FC).No.481 OF 2020 OP 634/2016 OF FAMILY COURT, IRINJALAKUDA PETITIONER SINOSE, AGED 38 YEARS S/O THAZHEKKADEN JOHNSON, THRIKKOOR VILLAGE AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

BY ADVS.

SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENTS

1 SHANCY, AGED 30 YEARS D/O ACHANDI KOCHAPPAN, THURUTHY PARAMBU DESOM, ALOOR VILLAGE, CHALAKKUDI TALUK, REPRESENTED BY FATHER AND THURUTHY PARABU DESOM, ALOOR VILLAGE, CHALAKKUDI TALUK.-680731

2 ACHANDI KOCHAPPAN AGED 74 YEARS THURUTHY PARABU DESOM, ALOOR VILLAGE, CHALAKKUDI TALUK.-680731

3 MARY AGED 64 YEARS ACHANDI KOCHAPPAN, THURUTHY PARABU DESOM, ALOOR VILLAGE, CHALAKKUDI TALUK.680731 R1-3 BY ADV. SRI.N.L.BITTO THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated : 4^th January, 2021 K.Vinod Chandran, J.

1. This Original Petition is filed against the order in I.A.636/2019 in G.O.P.634 of 2016. I.A.636/2019 is an application filed by the father for permanent custody of the minor child born in the wedlock of the petitioner and the 1^st respondent. The prayer in the IA was for sending the 1^st respondent for medical examination by a team of medical experts including a Psychiatrist. The allegation is also that the 1^st respondent is suffering from mental illness and incapable of looking after the minor child.

2. The learned Family Court Judge found that earlier when a joint divorce petition was filed, there was no such contention taken by the petitioner. It is the submission of the learned counsel for the petitioner that when a joint petition is filed, there would be no such contention taken and often to have quietus, the mental illness of one of the parties would not be mentioned. This does not preclude the contention being taken up in the Guardian O.P where welfare of the child is the paramount consideration. It is the contention of the father of the child that the mother, due to her mental condition is incapable of looking after the child.

3. The learned counsel also pointed out that there was an averment even in paragraph 7 at the time of instituting the OP about the mental illness. The averment in paragraph 7 of the originally instituted GOP is only to the extent that the 1^st respondent was taken for consultation before a Psychiatrist and then on her insistence, she was send with her parents. While sending the 1^st respondent with her parents, the petitioner is also said to have entrusted money with the parents for further consultation with the Psychiatrist. It is submitted that later to that, parents of the 1^st respondent has called the petitioner and asked him not to enquire further about the 1^st respondent and that she is not interested in talking to him. The learned Counsel for the respondent alertly points out that if the allegation is that the 1^st respondent is of unsound mind then the divorce by way of mutual consent would be vitiated.

4. We find that the allegation with respect to the mental condition of the 1^st respondent being to the extent of causing prejudice to the welfare of the minor child is one taken up by the amendment carried out to the original pleadings. The amendment also is to the effect that the situation has aggravated. We quite realize that the divorce may be vitiated if the respondent -wife is found incapable of deciding for herself, but that finding will have to be related to the date of giving consent. In any event that cannot restrict an enquiry; if there is sufficient material because, in the instant proceeding the welfare of the minor is the crucial issue.

5. The learned counsel for the petitioner submits that medical records are produced before the Family Court and that the doctor who treated the 1^st respondent is also being examined. It is submitted that already an application is pending before