Custody decisions must prioritize the child's welfare, ensuring the involvement and affection of both parents.

J U D G M E N T

P.G.Ajithkumar, J.

O.P(GW) No.1171 of 2021 on the file of the Family Court, Nedumangad was filed by the respondent-father seeking a decree declaring him the legal guardian of his minor children Shana Al Shami, aged 8 years and Shahan Al Shami, aged 7 years and to grant him their custody. The respondent filed I.A.No.1 of 2021 in that O.P. for getting interim custody of the children. The Family court after hearing both sides, as per order dated 24.12.2022, allowed that interlocutory application in part. The children were allowed to be in the custody of the respondent during the first 15 days of the month and to be in the custody of the petitioner during remaining 15 days. The petitioner-mother challenges the said order in this Original Petition filed under Article 227 of the Constitution of India.

2. On 03.01.2023, when this matter came up for admission, the respondent entered appearance through his learned counsel. On the request of the learned counsel for the respondent, the matter is adjourned to today.

3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

4. The contentions of the respondent are that after re-marriage, the petitioner has not been looking after the affairs of the children. Although the parents of the respondent are available at his residence, the children are not allowed to be with him. Thus the respondent contending that in order to ensure the welfare of the children, their custody should be given to him.

5. After hearing both sides, the Family Court observed that both the petitioner as well as the respondent have new marital partners and in such circumstances, the custody of the children have to be equally shared between them. From the submissions made at the Bar, we find that the children are now residing with the petitioner. They are school-going children and they are commuting daily from the petitioner's residence.

6. 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 paramount consideration is the welfare of the child. If the welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to custody of the child. The court must therefore be very wary of what is said by each of the spouses.

7. In Yashita Sahu (supra) the Apex Court noticed that a child, especially a child of tender years requires the love, affection, company, and protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation and every re-union may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both parents. Even if the custody is given to one parent the other parent must ha