The court emphasized the importance of maintaining familial bonds for the child's welfare, granting visitation rights despite the father's previous negligence.

JUDGMENT

Amit Rawal, J.

The present appeal is directed against the judgment and decree dated

05/06/2023 rendered in O.P(G&W) No.1397/2018 preferred by the father and grandparents under Section 7 of the Guardians and Wards Act1890 for custody or visitation rights of the minor child, which has been dismissed by the Family Court, Mavelikkara.

2. Facts leading to filing of the aforementioned petitions are that the marriage between first appellant/Benny Ben Thomas, who died on 07/12/2019 and Bincy Benny Ben was solemnized on 28/04/2008 and out of the wedlock, one male child named Nathan Ben Thomas was born on 27/09/2010. After living together as husband and wife for some time, parties decided to enter into an agreement to part ways. The marriage between the parties was dissolved on the basis of an agreement dated 14/11/2016. In a proceedings initiated by the wife in O.P.No.43/2017, husband/father agreed to pay maintenance to the ward and also to deposit huge amount in the name of the ward, but the same was not complied with and wife was constrained to file execution petition. After almost one year of the compromise whereby the husband and wife separated, the custody of the child remained with the mother. The husband along with his parents preferred the aforementioned Original Petition. Unfortunately, during the pendency of the O.P, husband passed away in the year 2019. Paternal grandparents prosecuted the aforementioned petition seeking visitation or custody rights. The trial court noticing the fact that the husband during his life time did not pay the maintenance nor deposited any amount in any of the bank or financial institution and also the fact that the mother is working as Nurse, rejected the plea of the paternal grandparents for custody as well as visitation rights. In that background, the present petition has been filed.

3. Learned counsel appearing on behalf of the appellants submitted that the trial court/family court, on account of the death of the father of the child/ husband of the first respondent on 07/12/2019, should have granted visitation rights or interim custody during vacations to the grandparents, so that the paternal grandparents are not deprived of the company, love and affection of the grandchild. Grandparents cannot be made to suffer for fault of their son. Child is now 12 years of age though is in the custody of the mother and is a school going, at least visitation rights for some period may be granted by causing a modification in the order under challenge.

4. On the other hand, the learned counsel appearing on behalf of the contesting respondents countered the arguments submitted that the marriage was dissolved by way of a compromise petition in O.P.No.1778/2020. Despite that the father/husband did not honour the conditions of payments of maintenance, necessitated the wife to file O.P., wherein husband/father suffered a statement of payment, but again the said commitment was not honoured, which compelled the wife to again approach the court for execution of the order. All these factors were noticed in extenso by the trial court while rejecting the plea of the paternal grandparents.

5. We heard the counsel for the parties and appraised the paper book. We have come across many cases of such nature where husband and wife have by way of agreement or compromise parted their ways but the children born out of their wedlock are unnecessarily made rollercoaster vis- a-vis permanent custody/interim custody. This is a case of such kind where after having mutually parted their ways by way of compromise in O.P.No.1778/2013, husband along with his parents preferred a petition in 2018 seeking custody of the child or visitation rights. Unfortunately, during its pendency he passed away on 07/12/2019. The trial court considering the conduct of the father/husband and keeping in view the interest of the child, who is in guardianship and custody of the mother, rejected the aforementioned prayer. Such observation in our view is