JUDGMENT

Ajithkumar, J.

These petitions under Article 227 of the Constitution of India are filed by the petitioner in G.O.P.No.2242 of 2021 on the file of the Family Court, Thrissur. That G.O.P. was filed for appointing the petitioner as the guardian of her minor twins children Ananya and Adithya, who are aged 3 years. The petitioner filed I.A.No.9 of 2022 seeking interim custody of the minor children. I.A.No.10 of 2022 was filed by the respondent in G.O.P.No.2242 of 2021 seeking interim custody of the children. The said interlocutory applications were considered together and as per order dated 03.09.2022 the petitioner-mother was directed to handover custody of the minor child Ananya to the respondent at 10.00 a.m. on 06.09.2022. The petitioner challenges the said order in these Original Petitions.

2. On 29.09.2022, when O.P.No.553 of 2022 came up for consideration, notice was directed to be served on the respondent. Parties were directed to appear in person along with the minor children, Ananya and Adithya, before this Court and the Registry was directed to post O.P.(FC) No.560 of 2022 also today.

3. Both parties along with the children appeared before this Court. We have interacted with the petitioner, respondent and the children.

4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent.

5. The marriage between the petitioner and the respondent was dissolved as per the order in O.P.No.307 of 2021. At the time of dissolution of the marriage, custody of the children was entrusted with the respondent. Both sides admit that both of them remarried. The petitioner-mother alleging that the respondent and his present wife are not looking after the affairs of the children, filed G.O.P.No.2242 of 2021. I.A.No.2 of 2021 was filed by the petitioner for permission to have custody of the minor children Ananya and Adithya during pendency of the petition. The Family Court, Thrissur, as per the order in that I.A. permitted the respondent to have interim custody of the children till the final disposal of the case, taking into account the fact that at the time of dissolution of the marriage, she had handed over custody of the children to the respondent and that she later married another person. It is also noted that there was an agreement between the parties at the time of dissolution of marriage that the custody of the children should be with the respondent.

6. The children are twins. Considering their age, it is just and appropriate to allow them to be together. That is necessary for their proper upbringing and developing sisterly affection between them. Separating twins apart at the tender age of 3 years certainly would create emotional distress in them. We are convinced of that aspect when we interacted with the children as well. Equally, it is important that care and love of both parents are available to them during this age of growth.

7. 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.

8. In Yashita Sahu (supra) the Apex Court noticed that a child, especially a child of tender years requir