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2023 Supreme(Online)(KER) 24493
HIGH COURT OF KERALA
AMIT RAWAL, C.S. Sudha, JJ
ABINA XAVIER – Appellant
Versus
NIDHIN K.B – Respondent
OP (FC) 463 2023
PRAVEEN K. JOY, E.S.SANEEJ, T.A.JOY, M.P.UNNIKRISHNAN, N.ABHILASH, ARDRA ANIL, DEEPU RAJAGOPAL, ALBIN VARGHESE, ABISHA.E.R, FATHIMA, SHALU, S.ANUPAMA NAIR
Custody decisions should prioritize the welfare and emotional needs of minor children, especially when one parent provides care and stability.
Headnote:
Custody - Family Law - Article 227 - Interim custody order set aside in favor of mother based on child's welfare.
Fact of the Case:
The petitioner sought interim custody of her twin sons from her husband, who opposed the request citing the mother's alleged drug use and illicit relationship, claiming custody provided instability to the children.
Finding of the Court:
The court found that the allegations against the mother required further evidence and emphasized the need for the children's affection and care, ultimately favoring the mother for interim custody.
Issues: Whether the interim custody of the minor children should be granted to the mother despite the father’s allegations regarding her character and misconduct.
Ratio Decidendi: The child's welfare must take precedence over parental disputes, especially when the mother provides adequate care and the allegations against her remain unproven.
Final Decision: The order maintaining interim custody with the mother was upheld.
J U D G M E N T
C.S.Sudha, J.
This petition under Article 227 of the Constitution has been filed by the petitioner/wife challenging the order dated 06/07/2023 in I.A.No.1/2023 in GOP.No.1066/2023 on the file of the Family Court, Ernakulam. The application was moved seeking interim custody of her minor children. The respondent/husband herein is the respondent in the proceedings before the trial court also. The parties will be referred to as described in the proceedings before the trial court.
2. The case of the petitioner in the GOP.No.1066/2023 is – The respondent is the husband of the petitioner. They have twin boys named Aagnesh Nidhin and Aagnendh Nidhin aged 5 years. The petitioner has been living separately from the respondent as she was brutally manhandled by the latter and his mother. The custody of the twin boys is with the respondent, who is preventing the petitioner from meeting her children. I/A No.1/2023 was moved seeking interim custody of the twin boys.
3. The respondent/husband opposed the application contending that he has already moved a petition for divorce on the ground of cruelty and adultery. The paramour of the petitioner is the second respondent in the divorce petition. The petitioner is using drugs such as MDMA in the company of her friends. In the absence of the respondent, the petitioner took away the children and has been residing with her parents while continuing her illicit relationship with her paramour. While so, the respondent got reliable information that the petitioner is planning to elope with her paramour and that she intends to take the minor children along with her. Knowing this, when the respondent went to the house of the petitioner to take custody of his children, the latter contacted her paramour and on his arrival, he manhandled the respondent. The petitioner has thereafter eloped with her paramour. She has threatened that she would remove the children from the lawful custody of the petitioner. The wayward life of the petitioner would affect the well-being and welfare of the children and therefore the custody of the children cannot be granted to the petitioner.
4. The trial court relying on Ext.B3 series photographs produced by the respondent/husband believed his case and held that the photographs show the intimacy between the petitioner and her alleged paramour and therefore in the said circumstances it would not be conducive to the welfare of the children to grant interim custody to the petitioner/mother. Therefore, the I.A was disposed of by Ext.P4 order permitting the petitioner to have custody of the minor children from 10.00 a.m to 01.00 p.m on all first and third Sundays of every month at the office of the Family Court. Aggrieved, the petitioner/wife challenges Ext.P4 order.
5. According to the petitioner, Ext.P4 order is illegal, arbitrary and unjust. The trial court believed the case of the respondent/husband based on a few a photographs which has not been proved in any manner.
As the finding is perverse, the same is liable to be set aside.
6. This Court by order dated 22/08/2023 had suo motu impleaded the Chairman, Child Welfare Committee, Kakkanad, Ernakulam as the additional second respondent in this petition. The operative part of the order reads thus-
“Taking note of special facts and circumstances of the case, we are of the view that the mother should be given custody of the children for ten days under the supervision of Child Welfare Committee and the children shall be handed over to the mother on 25.08.2023 at 5.00 p.m. and the mother shall have the custody of the children till next posting date on 04.09.2023. The Child Welfare Committee shall supervise and report whether the children are being taken care and protected.”
7. Today, both the parties as well as the twin boys aged 5 years are present before us. We interacted with the children, who expressed their wish/desire to continue their residence with their mother. We are quite conscious and aware that the boys are too yo
