Akhila July Antony vs Jebin Johny

P.G.Ajithkumar, J.

Respondents filed O.P.(G&W) No.1103 of 2022 before the Family Court, Muvattupuza seeking to declare them the legal guardian of the child Anton John Jebin, aged 2½ years, allow them permanent custody of the child and permanent injunction restraining the petitioners from forcibly taking away the child from their custody. The respondents filed I.A.No.2 of 2022 in that O.P seeking a temporary injunction in the same terms. In I.A No.2 of 2022, the Family Court passed an exparte order of injunction on 07.11.2022 restraining the petitioners from forcibly taking the child, Anton John Jebin, from the custody of the respondents until further orders, a copy of which is Ext.P4. The petitioners have filed an objection to I.A. No.2 of 2022, a copy of which is Ext.P3. They also filed I.A.No.5 of 2023 seeking to issue a direction to the respondents to give interim custody of the child to the petitioners. The petitioners have filed this Original Petition under Article 227 of the Constitution of India seeking to set aside Ext.P4 order and issue an order directing the Family Court, Muvattupuzha to grant interim custody of the child to the 1st petitioner till the disposal of O.P.No.1103 of 2022.

When this Original Petition was moved on 10.02.2023, this Court ordered notice on admission to be served on the respondents by special messenger. The respondents 1 to 3 entered appearance through their learned counsel.

Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondents.

The learned counsel appearing for the petitioners would submit that respondents after getting custody of the child from the petitioners on giving assurance that they will render every assistance to take the child to the United Kingdom where the 1st petitioner is working, had filed O.P. No.1103 of 2022 and obtained an order of injunction. Since the 1st petitioner is working in U.K. and she came to Kerala two days back, it is her right to get the custody of the child, who is only 2½ years and take the child along with her to UK. The learned counsel would submit that entrusting custody of the child to respondent Nos.2 and 3, who are the paternal grandparents is totally unsafe. The 1st respondent father is abroad. Even according to respondents the affairs of the child are taken care of by a maid servant. It is the further contention of the learned counsel that the Family Court although had directed to produce the child before the court on considering the application filed by the petitioners, that order was not obeyed by the respondent. The 1st petitioner has to leave for UK on 16.02.2023 and therefore urgent orders in the matter is required. In such circumstances, the the learned counsel for the petitioners would submit that this court has to pass orders allowing custody of the child to the 1st petitioner. In order to fortify the contention that being the mother, 1st petitioner has every right to be in custody of the child, the learned counsel placed reliance on the decisions of Nil Ratan Kundu & Anr v. Abhijit Kundu [(2008) 9 SCC 413] and Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67].

The learned counsel appearing for the respondents on the other hand would submit that the Family Court, Muvatuppuzha has scheduled to hear the interlocutory matters today, but the petitioners got it adjourned and the interlocutory applications are now posted to tomorrow for consideration. The learned counsel would submit that the allegations levelled against the respondents that they stealthily had taken away custody of the child is incorrect. The learned counsel for the respondent further would submit that the respondents would be producing the child before the Family Court, Muvatupuzha tomorrow. In Nil Ratan Kundu (supra), the Apex Court held,-

“56. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.”

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.

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 have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights. A child has a human right to have the love and affection of both parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.

In I.A.No.2 of 2022, an ad interim order of injunction was passed vide Ext.P4. The petitioners have filed objections in that interlocutory applications and it is scheduled for hearing before the Family Court, Muvattupuza. Similarly, I.A. No.5 of 2023 which was filed by the petitioners seeking to give interim custody of the child to the 1st petitioner is also pending consideration of the Family Court. Both those applications are posted for hearing tomorrow (14.02.2023). There was already an order by the Family court directing the respondents to produce the child before the court from 08.02.2023 to 12.02.2023 from 1.00 p.m to 5.00 p.m, obviously to enable the petitioners to have interaction with the child. The petitioners complain that the respondents did not obey the said direction.

Ext.P4 is an ad interim order of injunction. Respondents have already field objection in I.A. No.2 of 2022. A final order in I.A.No.2 of 2022 is liable to be passed by the Family Court. It is not appropriate for this Court to invoke the powers under Article 227 of the Constitution of India to consider legality or otherwise of Ext.P4. Similarly when the Family Court scheduled Ext.P5 interlocutory Applications for consideration, this court cannot under the supervisory jurisdiction give any direction regarding interim custody of the child.

Since both I.A.Nos.2 of 2022 and 5 of 2023 are scheduled for consideration before the Family Court on 14.02.2023, it is for the Family Court to take a decision on those applications after hearing both sides and in consideration of the law laid down in the aforesaid decisions. The child will be produced by the respondents before the Family Court on 14.02.2023. The Family court will get an opportunity to interact with the child also.

In the circumstances, this original petition is disposed of directing the Family Court, Muvattupuzha to consider I.A. Nos.2 of 2022 and 5 of 2023 in O.P No.1103 of 2022 on 14.02.2023 and take a decision regarding custody of the child in the light of the law laid down in the aforesaid decisions, if possible on the same day. At any rate necessary orders regarding interim custody of the child shall be passed by 15.02.2023.

Registry shall forward a copy of this judgment to the Family Court, Muvattupuzha forthwith.