Amit T.S. vs Divya M.S

P.G. Ajithkumar, J.

Master Adwaith is now aged 9 years. His father filed O.P.No.1537 of 2016 before the Family Court, Thrissur for getting his permanent custody. On the basis of Ext.P1 settlement agreement entered into by his parents, through mediation, O.P. was disposed of on 24.04.2017. The stipulations regarding interim custody of the child in Ext. P1 were modified by the Family Court, Thrissur as per the order dated 22.04.2019 in I.A.No.3461 of 2018. Later, his mother filed I.A.No.3707 of 2019 and father filed I.A.No.4070 of 2019 in that O.P. seeking modification of the custody order. The Family Court on 27.11.2019 as per a common order dismissed those applications. Father filed O.P.(FC) No.748 of 2019 and the mother filed O.P. (FC) No.758 of 2019 challenging the said common order, both under Article 227 of the Constitution of India. Mother filed Mat.Appeal No.419 of 2021 under Section 19(1) of the Family Courts Act, 1984 also to challenge the legality and correctness of the order in I.A.No.3707 of 2019 in O.P.No.1537 of 2016.

Father and mother are referred to as the petitioner and the respondent respectively for convenience.

These matters were admitted to file and various orders regarding interim custody of the child were passed during the pendency of these cases. In obedience to the order dated 11.10.2022 the petitioner, the power of attorney holder of the respondent and the child Adwaith appeared personally before this Court on 25.10.2022. We have interacted with them. Child was produced by the power of attorney holder of the respondent. Child was sent along with the father during the course of proceedings and his wishes were later ascertained.

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

Marriage of the petitioner and the respondent was solemnised on 26.04.2012. Child Adwaith was born in that wedlock on 22.06.2013. On mutual consent, their marriage was dissolved on 12.04.2018. O.P.No.1537 of 2016, which was filed by the petitioner claiming custody of the child, was mediated upon and the dispute was settled. Ext.P1 dated 24.04.2017 is the decree in terms of the said mediation agreement. Clauses (2) and (3) are the arrangements regarding custody of the child. Permanent custody of the child was given to the respondent. The petitioner was allowed to have custody of the child during the first half of Christmas, Onam and summer vacations. Also, if he is abroad, his parents were allowed to have interim custody of the child on every second Saturday from 9.00 a.m. to 6.00 p.m. The petitioner and the respondent were allowed to interact with the child over phone at any time.

The petitioner and the respondent were abroad and during that period, clefts and crevices developed in their relationship. The respondent returned home. The petitioner was employed in Dubai and he continued there. Whileso, Ext.P1 decree was passed. The petitioner later filed I.A.No.3461 of 2018 before the Family Court seeking modification to Ext.P1 decree. The Family Court, Thrissur, after hearing both sides, modified the arrangements regarding custody of the child as follows:

“1. The respondent shall handover custody of the child to the parents of the petitioner between 10.00 a.m. on every 2nd Saturday to 5.00 p.m. Of succeeding Sundays.

The petitioner or his parents should be permitted to interact with the child through internet or through phone daily for half an hour between 8.00 p.m. to 9.00 p.m.

All other stipulations in the decree shall continue.”

On 21.06.2019, the respondent remarried. Sri.Swaroop N.S., who appeared before this Court as her power of attorney is the second husband. It was thereafter the respondent filed I.A.No.3707 of 2019 for modifying the custody order to the effect that the custody of the petitioner be restricted to during the annual vacation alone. The petitioner filed I.A.No.4070 of 2019 seeking permanent custody of the child in modification of Ext.P1. The Family Court considered both those applications together. Oral evidence of PW1-the respondent, PW2, Sri.Swaroop and RW1-the petitioner were recorded. Exts.A1 to A13 and B1 to B9 were admitted in evidence. After hearing both sides, the applications were dismissed, holding that no modification to the terms and conditions in Ext.P1 as modified by the order in I.A.No.3461 of 2018 is required.

Now, the petitioner filed I.A.No.2 of 2022 in O.P. (FC) No.748 of 2019 under Section 12 of the Guardian Wards Act, 1890 seeking to grant him interim custody of the child pending disposal of the original petition. The petitioner has pointed out change of circumstances for claiming interim custody. It is contended that the respondent already left for Canada and the child is now with her second husband. The petitioner is employed in Gulf and he is in a position to take his parents as well as the child to Gulf, where he can enrol the child in a reputed school. When the mother is not available and the petitioner-father is now in a position to take care of the child, including imparting standard education to him, it is inappropriate to leave the child in the custody of the stepfather.

The respondent, through her power of attorney, Sri.Swaroop, filed a counter affidavit. She maintained that after getting permission from this Court, she went abroad. This Court as per order dated 13.09.2021 ordered that the pendency of the cases would not stand in the way of processing and obtaining Visa for the child. The order was with a caveat that the respondent shall not take the child abroad without obtaining permission from this Court. Abiding by the said direction, she has been trying to get Visa for the child. It is her claim that she can take her present husband and child to Canada and in such circumstances, the request of the petitioner is not liable to be allowed.

At the time when the compromise decree, Ext.P1 was passed, the petitioner was abroad and the respondent was at Thrissur at her parental home. The petitioner occasionally only had been coming to the native place. In such circumstances, the parties mutually agreed to have such arrangements, namely, permanent custody of the child with the respondent and the petitioner having the right to interim custody during Onam, Christmas and summer vacations; besides weekend custody on second Saturdays. While the petitioner is not available in the Country, his parents were allowed to have custody of the child as per the said stipulations. In terms of the order in I.A.No.3461 of 2018, the petitioner was allowed to have custody of the child every second Saturday and succeeding Sunday. Apart from such interim custody, the petitioner and his parents were allowed to interact with the child for half an hour between 8.00 p.m. and 9.00 p.m. every day. While so, the petitioner and the respondent approached the Family Court by filing I.A.No.3707 of 2019 and I.A.No.4070 of 2019 respectively. The circumstances have again changed. Going by the averments in the respective affidavits, it is seen that the respondent left for Canada and she is living there. The child is now residing along with Sri.Swaroop, the second husband of the respondent. The child is now studying Standard IV in Toc-H School at Ernakulam.

The petitioner is now available at the station. During the interaction, he stated that he will be here for another month after which he has to go to Gulf. The specific contention of the petitioner is that he should be allowed to take the child to Gulf, where he can impart standard education by admitting the child to a reputed school; whereas, the education facilities in Canada are comparatively not that advanced, and therefore the child cannot be allowed to be taken to Canada. The learned counsel appearing for the petitioner would submit that since the child is now with the stepfather, it is only appropriate to allow the petitioner to have custody, at any rate, during the period when he is available in the station. During the interaction, we find that the child is staying along with Sri.Swaroop N.S., without much trouble and inconvenience. We noticed that the child has been interacting freely with his father and paternal grandparents, who were present in Court. Similarly, the child has been freely moving with the stepfather.

The learned counsel appearing for the respondent, after referring to the permission granted by this Court to process Visa for the child for his travel to Canada, submitted that allowing the petitioner to take the child along with the petitioner to the Gulf would not be in the best interest of the child.

As stated above, the circumstances have changed. Since the respondent is in Canada, and the child is allowed to be with the stepfather, the petitioner seeks to allow him to take the child along with him to Gulf and enroll the child in a school in Dubai. The respondent who attended the proceedings online maintains that she would be able to take the child to Canada, and impart standard education. This Court as per the order dated 13.09.2022 granted her permission to process and obtain a Visa for the child to take him to Canada, but she could not obtain it so far.

In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] the Apex Court held that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court if the welfare of the wards demands variation.

15 In view of the law laid down in Rosy Jacob it is possible for the parties to approach the court to get a custody order modified, pointing out change of circumstances. As far as the impugned order is concerned, the Family Court took every aspect into account and an appropriate view was taken. There has not been much change when the Family Court rendered the common order dated 27.11.2019, except that the mother married again. The child was happy to continue with the mother, despite her marriage again. The petitioner was then also abroad and in such circumstances, the request of the petitioner or the respondent to modify the arrangement regarding custody of the child would not have been entertained. Hence we find that the common order dated 27.11.2019 of the Family Court, Thrissur is not incorrect.

In Rosy Jacob (supra) the Apex Court reminded us about the need to have an attitudinal change in the matter relating custody of children. It was held that the children are not mere chattels, nor are they mere playthings for their parents. The absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be valuable members of the society and the guardian Court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of the welfare of the minor children and the rights of their respective parents over them.

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 Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476] the Apex Court held that, whenever the court disturbs the custody of one parent unless there are compelling reasons, the court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right to have the company of both parents. Such orders are not passed only for protecting the rights of the parents. xx xx xx The court cannot accept the submission that, while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.

In Rohith Thammana Gowda v. State of Karnataka & others [(2022) SCC Online SC 937], the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an enquiry regarding custody of children. The Apex Court explained the law as follows:

“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 looking into the question as to, ‘what would be the best interest of the child concerned’. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits.”

The child, Adwaith, among the parents, prefers to be with the mother. He also stated that he is happy to be with his father for a few days. Now, he is studying in Std.IV in a school at Ernakulam. He stays also at Ernakulam along with his stepfather. Taking that into account, we are of the view that it would not be in the interest of the child to change his residence during the middle of the academic year. He has no difficulty now staying with his stepfather. Therefore, the request of the petitioner in I.A.No.2 of 2022 for custody of the child during the pendency of these Original Petitions and the Mat.Appeal, which necessarily involves a change of residence and school, is not able to be allowed. At the same time, more frequent weekend custody of the child can be given to the petitioner during the period when he is available in the station.

Accordingly, we dispose of these Original Petitions, Mat. Appeal and also I.A.No.2 of 2022 in O.P.(FC) No.748 of 2022 in the following terms:

i) custody of the child, Adwaith will be given to the petitioner from 10.00 a.m. on every Saturday till 2.00 p.m. on the ensuing Sunday during the period when the petitioner is available in station;

ii) subject to the above, the custody of the child will continue to be governed by the stipulations in Ext.P1 as modified by the order dated 22.04.2019 in I.A.No.3461 of 2018 for the time being;

iii) the child shall not be taken abroad either by the petitioner or by the respondent without the permission of the Family Court, Thrissur; and

iv) it is open for the parties to approach the Family Court for modification of the custody order, if there is real and genuine requirement on account of the change in the circumstances.