Rahna Rahiman vs Maneesh P.S.

S.P. Chaly, J.—1. This Original Petition is filed against the order of the Family Court, Kozhikode in I.A. No. 1372 of 2015 in O.P.(G&W) No. 1010 of 2015, dated 02.02.2016, as per which the Family Court has made temporary arrangements granting visitation right to the petitioner on the minor children of the parties herein.

Necessary facts required for disposal of the Original Petition are that: The petitioner and the respondent are wife and husband, their marriage being solemnized on 19.11.2004. In the said wedlock two sons were born, named Aarav, aged 8 years and Akhil, aged 3 years. Petitioner is working as a Branch Manager in a Bank at Chalappuram, Kozhikode. It is the case of the petitioner that, respondent is not having any permanent job and he made the marital life miserable with cruelty, quarrels and alcohol.

Due to the matrimonial disputes and marital disharmony between the petitioner and the respondent, friends and relatives intervened, and as agreed by both sides, they started living separately in their respective parental houses. As per the said arrangement, the elder son was left in the custody of the respondent and the younger son in the custody of the petitioner. Visitorial rights and access to both the children were reserved between the parties. It is contended that the younger child, who is aged only 3 years, is very much attached to the petitioner.

Matters being so, on 20.11.2015 respondent went to the house of the petitioner and took the younger child under the guise of his visitation rights, but did not return as agreed upon. In such circumstances petitioner complained to the Police, but it did not yield any result. It is the contention of the petitioner that, later it was understood that the respondent played fraud on the Family Court, Kozhikode by filing O.P. No. 996/2015, seeking restitution of conjugal rights and claimed that both the children are in his custody. In the aforesaid circumstances the petitioner filed the Original Petition in question before the Family Court, Kozhikode, praying for guardianship and custody of both the minor children, as evident from Ext. P1. Along with the said Original Petition the petitioner has filed I.A. No. 1372 of 2015 seeking interim custody of the children as evident from Ext. P2. To the said Interlocutory Application, the respondent has filed Ext. P3 objection.

After detailed hearing and interaction with the children, the court below granted interim custody of the children to the petitioner on 31.12.2015 upon terms, as per Ext. P4 order. The said order was challenged by the respondent before this court by filing O.P.(FC) No. 28 of 2016. By Ext. P5 judgment, dated 21.01.2016 this court set aside Ext. P4 order passed by the Family Court and directed the court below to pass fresh orders within two weeks from the date of receipt of a copy of that judgment. While issuing such direction, an interim arrangement was made by this court directing the respondent to hand over custody of both the children to the petitioner on Saturdays for being returned on the succeeding Sundays. It is the contention of the petitioner that the respondent did not comply with the interim arrangement made by this court.

In compliance with the direction issued by this court, the Family Court again heard the parties and passed Ext. P6 order dated 02.02.2016. It is aggrieved by the said order passed by the Family Court, this Original Petition is filed.

Heard learned counsel for the petitioner and the respondent.

The Family Court, after appreciating the rival contentions and the documents produced by the parties, has passed the following order, allowing the Interlocutory Application in part:

"The respondent shall produce both the minor children before the Sheristadar of this court at 10.30 a.m. on every Saturdays. The petitioner shall have access to the children at the court premises until 1.00 p.m. and at 1.00 p.m., the elder child shall be returned to the respondent and the younger child will be taken with her and she will be entitled to keep custody of the younger child till 3.30 p.m. on the succeeding Sundays. The younger child will be handed over to the petitioner at 3.30 p.m. on the succeeding Sundays at the premises of this court. These arrangements shall continue until disposal of the O.P."

While setting aside the earlier order, this court had made an interim arrangement with respect to the custody/visitation rights, to tide over the situation during the interregnum period of consideration of the application by the Family Court and it was never meant to be followed by the Family Court. The Family Court was given the liberty to appreciate the rival circumstances and to arrive at its own finding.

Anyhow, when the matter came up for admission before this court, upon hearing rival contentions of counsel on either side, we were of the considered opinion that a direct interaction with the children and the parents may help in arriving at an agreement with regard to the custody of the children or even with respect to a re-union of the petitioner and the respondent. Accordingly we directed the presence of the parties along with the children. We had interaction with the petitioner and the respondent in order to explore possibility of their reunion. Even though initially the parties have agreed that they will positively think over the suggestions made by us, we could realise that nothing positive was turned out for their re-union, in view of certain further developments that took place subsequent to our first interaction. Even though a second session was conducted by us, nothing materialised and therefore we did not pursue our endeavour for a reunion of the petitioner and the respondent.

We interacted with the elder child. Even though initially he expressed an inclination to reside with the respondent permanently, on further probe into the reasons for the same he revealed to us that unless he adopts such a stand his mother will not join the father in the matrimonial home. On interaction with the elder child, we found that he is a very intelligent boy, even though aged only 8 years. His intelligence and thought process are far superior to his age. He was able to communicate with us many matters which an ordinary child of that age may not be able to discuss. From our interaction twice with the child, we could realise that the child has no aversion or any other detachment to the petitioner, but he had set up his own ploy to make an endeavour to unite the father and the mother. With the said intention in mind, the elder child is showing reluctance to go and stay with his mother. While we were interacted with the mother and the father separately as well as together, the children were also present and the children are intimate and affectionate to both the parties. We noticed that the younger child, being of a tender age seems to be more attached to the petitioner/mother, even though the respondent/father also shows his affection to him. Therefore, we do not find any reason to think that the elder child has any disinclination to go with the petitioner as found by the Family Court. The petitioner as well as the respondent are residing in their parental houses, which are situated in close proximity. Therefore we are of the considered opinion that a reasonable interim arrangement can be made in order to enable the petitioner and the respondent to have custody of the children intermittently, which will help the children to grow together without being detached from the personal relationship the children are maintaining. Both the families consists of grandparents of the children, interactions with whom will also be good for the welfare of the children.

Learned counsel for the petitioner contended that the respondent is creating and causing lot of inconveniences to the petitioner, and the mind of the children are being spoiled by inculcating in them adverse and hostile situations against the petitioner, and is attempting to detach the children from the care and custody of the mother. It is also contended that the respondent is not a caring father and he is in the habit of inflicting mental injuries to the petitioner, which may have reflections on the children. It is also contended that many falsehood are told by the respondent against the mother so as to create impression on the children that the mother is not affectionate and loving towards them. Therefore, it is the contention of the learned counsel that if the children are left with the custody of the respondent, the children will develop a total hostile attitude against the petitioner, which is not conducive to their health, growth and welfare.

Per contra, learned counsel for the respondent submitted that, the petitioner and the respondent belong to different religions and they have decided to live together as husband and wife. But the petitioner had attempted to impress upon the children the religious activities of her religion and the petitioner has done many things of such a nature and suppressed such facts from the purview of the respondent. It is also contended that the children are very much attached to the respondent and they are taken care of by the respondent with utmost sincerity, love and affection. It is also submitted that the parents of the respondent are very fond of the children and the children reciprocates their love and affection towards them also. It is also the contention advanced by the learned counsel that the petitioner is a Manager in a new generation Bank and she has to work from morning 9 a.m. till 8 p.m. Therefore it is contended that, the petitioner is not having much time to take care of the children, their welfare and their studies. Moreover, it is contended that the children have no affection or any sort of affinity towards the maternal grandparents and it is also not a conducive atmosphere for the welfare and growth of the children. It is also contended that the arrangements made by the Family Court is by taking into account the entire fact situations, after interactions with the children and therefore no interference is called for, since the said order is not suffering from any illegality, irrationality or gross injustice for invoking the supervisory jurisdiction of this court.

We have considered the rival submissions made and perused the pleadings and records produced before us. The question that arises for consideration is whether any interference with the order passed by the Family Court is necessitated taking into account of the tender age of the children. As we have stated earlier, in the earlier round of litigation this court had made only an intervening arrangement till the Interlocutory Application is re-considered by the Family Court. The Family Court had interacted with the children and the parents and found that some sort of disinclination is expressed by the elder child to go along with the mother and therefore the mother was allowed to interact with the elder child from 10.30 a.m. to 1 p.m. alone on every Saturdays and thereafter the elder child was directed to be returned to the respondent and the younger child is allowed to be kept in the custody of the petitioner from 1 p.m. on every Saturday till 3.30 p.m. on the succeeding Sundays. Thus it can be seen that the petitioner is not granted with overnight custody of the elder child; and the younger child is given only for one day''s overnight visitorial custody. The said order passed by the Family Court, we do not think that, was taking into account of the entire facts and circumstances and also taking into account the affection the children have with the petitioner and the respondent. During the course of our interaction with the children, independently and along with the parents in separate sessions, what we could gather was that the children have expressed their intimacy, love and affection to both the parents. However, we found that the elder child who seems to be very intelligent, has certain ideas in his mind, as an attempt to reunite the petitioner and the respondent and with that bonafide intention, in order to execute those ideas only, he is expressing a little bit of disinclination to go and stay with the petitioner. He even went to the extent of conveying to us that if he do not take such a stand the petitioner will not go to the parental house of the respondent.

However, it is well settled that the paramount consideration is the welfare of the children, which includes association with their parents, grandparents and immediate relatives by spending quality time sufficient in measure with them. The children are entitled to reside together to develop their intimacy and affection, which will in turn becomes a vital aspect for their healthy growth, future relationship and healthy prospects. By such association only the children will understand each other which is a necessary foundation and requirement for them to lead a stable and healthy life. By sharing the thoughts and ideas each other will help their educational career to a large extent and which will in turn reflect in their character and conduct. Sufficient length of staying together of the children is required in order to understand the importance of togetherness and happiness.

Having assimilated the fact situations, we are of the considered opinion that it is always advisable and necessary that the minor children are entitled to have association with each other, and at the same time, the marital disharmony by and between the petitioner and the respondent, according to us, which is of a trivial nature, shall not affect the growth, wellbeing, welfare and education of the children. In order to maintain and enhance the relationship among the children, it is always good that the children have interactions by staying together with the father and mother in equal measure. We also do not want to dishearten the elder child to execute his ideas and arrangements in order to see that the parents unite. Therefore, in the fitness of things of all concerned, we are of the considered opinion that an arrangement can be made to suit the aforementioned circumstances. In that view of the matter, we set aside Ext. P6 order of the Family Court and make the following arrangements:

"(i) Arrangements with respect to interim custody of the children provided hereunder will start from the evening of 01.04.2016, at 5.00 p.m. On that day the respondent shall hand over custody of both the children together to the custody of the petitioner.

(ii) Normally the elder child will be permitted to stay with the respondent and the younger child will be permitted to stay with the petitioner. Both the parties will have interim custody of both the children together at alternate weekends from 5.00 p.m. on Fridays till 5.00 p.m. on the succeeding Sundays. The first of such weekend custody will begin with the petitioner from 5.00 p.m. on 01.04.2016 till 5.00 p.m. on 03.04.2016. The elder child shall be handed over custody back to the respondent before 5.00 p.m. on 03.04.2016. The younger child shall be handed over custody to the respondent on the next weekend i.e. on 08.04.2016. The respondent will be entitled to keep custody of both children together during that weekend, and the younger child will be handed over back to the petitioner before 5.00 p.m. on 10.04.2016. Again the elder child will be given custody to the petitioner on the next weekend before 5.00 p.m. on 15.04.2016. The said arrangement in succession shall continue thereafter.

(iii) During the first half of the Onam and Christmas holidays, for 5 days each, custody of both the children together shall be handed over to the petitioner and during the second half the respondent shall be handed over with their custody together. During mid-summer holidays in the year 2017 and thereafter, if the case is not disposed of, both the children shall stay together at the intervals of 2 weeks each, alternately at the house of the petitioner and the respondent, the first of such 2 weeks should start from the petitioner.

(iv) The above said arrangement should continue till the disposal of the Original Petition by the Family Court. However the parties will be at liberty to seek modification of such arrangement if there is any substantial change in the circumstances, or if there arise any emergent situation which prevents the parties from complying with the arrangement of custody. It is made clear that the Family Court will be at liberty to pass any such modification if it is found necessary to tide over any such change or situation, without in any manner affecting the basic character of the above said arrangements.

(v) The handing over custody of the children on every occasion will be from the premises of the Family Court at Kozhikode and the same shall be noted by the officer who is in charge in the Register kept for the said purpose."

The above Original Petition is hereby disposed of in terms of the conditions incorporated as above.