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2023 Supreme(Online)(KER) 9166
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
BIBIN MARY ABRAHAM – Appellant
Versus
PRINCE V ELIAS – Respondent
OP (FC) 175 2023
BHANU THILAK, S.R. PRASANTH, C.S. MANILAL, S. NIDHEESH
The welfare of the children is the overriding consideration in custody disputes, necessitating a focus on their best interests over parental allegations.
Headnote:
Custody - Family Law - Article 227 - The court emphasized the paramountcy of child welfare in custody disputes, focusing on the best interests of the children while addressing interim custody matters and balancing parental rights.
Fact of the Case:
The petitioner, a mother studying abroad, seeks to challenge an order granting interim custody of her younger children to the father, amidst ongoing disputes regarding custody and divorce.
Finding of the Court:
The court reaffirmed the principle that the welfare of the children is paramount and deemed it appropriate for the father to have interim custody while the mother is abroad.
Issues: Whether the temporary custody arrangement favoring the father aligns with the children's best interests given the mother's absence.
Ratio Decidendi: The court's decision was grounded in the principle that the welfare of the child must be the decisive factor in custody inquiries, allowing the father temporary custody due to the mother's overseas commitments.
Final Decision: The court confirmed the Family Court's interim custody order, modifying the duration of the mother's custody opportunities.
JUDGMENT
P.G. Ajithkumar, J.
The petitioner is the mother of three children, William Prince, Winston Prince and Wilfred Prince, who were born on 02.12.2011, 04.12.2014 and 12.07.2015 respectively. The respondent is the father. In O.P.(G&W) No.320 of 2021 filed by the petitioner before the Family Court, Thiruvalla declaring her the guardian of children and also to get custody of the eldest son, who is now in the custody of the respondent, a counter claim was filed by the respondent. He claims custody of the younger two children, who are now in the custody of the petitioner. The respondent in that original petition has filed I.A.No.4 of 2023 for getting interim custody of two younger children. The Family Court as per Ext.P8 order dated 31.03.2023 allowed the said interlocutory application subject to a few conditions. The petitioner challenges the said order in this original petition filed under Article 227 of the Constitution of India .
2. On 05.04.2023, notice on admission was directed to be served on the respondent. The respondent entered appearance through his learned counsel. The respondent has filed a counter affidavit.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. The petitioner-mother is now abroad. She is pursuing her Post Graduation in the United Kingdom. She was earlier working in I.B.M. at Bangalore. The respondent-father is working as a Superintending Engineer in ONGC at Panvel in Mumbai. The elder son, William Prince, has been with the respondent and studying in a school at Panvel. The younger children Wincent Prince and Wilfred Price are studying in a school at Thiruvalla. They were with their mother. However, in September, 2022 the mother, petitioner, went abroad to pursue her Post Graduation. In this Original Petition, the petitioner stated that her course will be over in September, 2023 and she would be able to come back in October, 2023.
In such circumstances, younger children are staying with their maternal grandparents and studying in a school at Thiruvalla.
5. Both sides raised several contentions and allegations against each other with respect to their marital relationship and reasons for the estrangement. Apart from O.P.No.320 of 2021, several other cases are also pending between them. The petitioner filed O.P.(Divorce) No.358 of 2020 for divorce. She also filed O.P.(Patrimony) No.331 of 2021 claiming return of gold and realisation of money. M.C.No.103 of 2021 was also filed by the petitioner. The respondent filed O.P.(Divorce) No.642 of 2021 seeking a decree of dissolution of marriage. He has filed a counter claim in O.P.(G&W) No.320 of 2021 as well.
6. InRohith Thammana Gowda v. State of Karnataka & others [ AIR 2022 SC 3511 ] the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an inquiry regarding custody of children. The Apex Court also explained how a desire expressed by the child has to be approached. It was held:
“8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question ‘what is the wish/desire of the child’ is different and distinct from the question ‘what would be in the best interest of the child’. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely lookin
