Partly allowed

Anjali Menon v. Gireesh v R.

Kerala HC1 Sept 2022OP (FC)/502/2022

Case brief

AI extract

What is this about?

The High Court of Kerala permitted an original petition invoking supervision under Article 227. The Court interfered with the Family Court order granting interim custody, holding it unsustainable without prior child interaction. Overnight custody was denied; restricted visitation rights were granted during school vacation.

What did the court decide?

Overnight custody denied; visitation rights granted on 03.09.2022, 05.09.2022 and 06.09.2022 from 10.30 a.m till 4.00 p.m. at Cherthala Magistrate Court premises.

Anjali Menon Vs Gireesh v. R. — Child Custody and Guardianship | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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THURSDAY, THE 1ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944

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AGAINST THE ORDER DATED 24.08.2022 IN I.A.NO.10 OF 2022 OF

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O.P(G&W)NO.324 OF 2022 OF THE FAMILY COURT, ALAPPUZHA

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PETITIONER/RESPONDENT:

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ANJALI MENON, AGED 33 YEARS
D/O.VASUDEVA MENON, PARIYAZHATH VEEDU,
VAYALAR P. O., VAYALAR EAST VILLAGE,
CHERTHALA, PIN - 688524

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BY ADVS.
GOVIND CHANDRABHANU
MANU HARSHAKUMAR
MARY ANN SAJI
ADARSH S.

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RESPONDENT/PETITIONER:

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GIREESH V. R., AGED 41 YEARS
S/O.RAMACHANDRAN NAIR,
VELAMPARAMBIL VEEDU,
PATTANAKKADU VILLAGE, PATTANAKKADU P. O.,
REPRESENTED BY POWER OF ATTORNEY HOLDER
LEELAKUTTY, AGED 55 YEARS,
W/O.VIJAYAKUMAR B., SIVA VIJAYA HOUSE,
PATTANAKKADU P. O., CHERTHALA, PIN - 688529

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BY ADV.SRI RAMKUMAR J.- FOR RESPONDENT

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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O.P.(FC) No.502 of 2022

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J U D G M E N T

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Anil K. Narendran, J.

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The petitioner is the respondent in OP(G&W) No.324 of 2022 on the file of the Family Court, Alappuzha. The petitioner has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P4 order dated 24.08.2022 of the Family Court, Alappuzha, whereby the respondent herein is given interim custody of the minor children named Gawtham Gireesh aged 6 years and Gayanthika Gireesh aged 3 ½ years. Paragraph 5 and also the operative portion of that order read thus:

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“5. At the very outset, it is seen that the POCSO case was referred by the police as false, as discernible from Ext.Al Refer report. It shows that the respondent tutored the child to foist that false case, to defeat the rights of the father. Therefore, interaction with the children will be a futile exercise, as they will again tell some tutored version. Moreover, the children are too young, so as to form a rational opinion on these things. Therefore, this Court did not interact with the children if tutored versions are entertained, it will lead to a dangerous situation that anybody can win the litigation by tutoring the children. It is not the purport of law and litigation. Now the law favours a shared parenting or co-parenting, and no parent can alienate the children from non-custodial parent. If

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O.P.(FC) No.502 of 2022

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a custodial parent alienates the child from the noncustodial parent, that itself is a ground going against such parent. Welfare of the child is better protected, if pampering of the father also is obtained. Even if Ext.B3 psychological report is taken in its face value, the mental trauma if any caused to the child can be from the tutoring or scaring and other adverse mental make ups thereby created, and it is not enough to defeat the rights of a father. The records show that the child has exams today and on next days. Hence only a visitation right is allowed today.

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In the result, the petition is partly allowed and the petitioner is allowed to visit and interact with the children today (24-082022) between 4 P.M and 6 P.M and also both the children named Gawtham Gireesh and Gayanthika Gireesh are given to the custody of the petitioner from 10 AM of 03-09-2022 till 10 A.M of 05-09-2022 (Two days) during Onam Vacation.”

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On 30.08.2022, when this original petition came up for

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admission, this Court admitted the matter on file and issued notice to the respondents by special messenger.

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

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In Yashita Sahu v. State of Rajasthan [(2020) 3

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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

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O.P.(FC) No.502 of 2022

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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

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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.

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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

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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

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O.P.(FC) No.502 of 2022

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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.

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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.

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The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P4 order dated 24.08.2022 of the Family Court in I.A No.10 of 2022 in O.P.No.324 of 2022.

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During the course of arguments, it has come out that the

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last interaction of the children with the respondent father was in year 2020. Before granting the interim custody, the Family Court

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O.P.(FC) No.502 of 2022

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has not chosen to interact with the minor children, who are aged 6

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years and 3 ½ years respectively. In view of the law laid down in the decisions referred to supra, the order of the Family Court to the extent of granting overnight custody of the minor children to the respondent father cannot be sustained in law.

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In such circumstances, this original petition is disposed of by interfering with Ext.P4 order of the Family Court, thereby restricting that order as one permitting the respondent father to have visitation right of the children on 03.09.2022, 05.09.2022 and 06.09.2022, from 10.30 a.m till 4.00 p.m., in the premises of the Judicial First

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Class Magistrate Court-I, Cherthala.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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Sd/-

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P.G. AJITHKUMAR JUDGE

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O.P.(FC) No.502 of 2022

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APPENDIX OF OP (FC) 502/2022

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PETITIONER’S EXHIBITS

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Exhibit P1TRUE COPY OF THE OP (G&W) NO 324/2022
PREFERRED BEFORE THE FAMILY COURT
ALAPPUZHA.
Exhibit P2TRUE COPY OF THE IA 10/2022 IN OP NO
324/2022
Exhibit P3THE OBJECTION FILED BY THE PETITIONER IN
IA 10/2022
Exhibit P4TRUE COPY OF THE ORDER DATED 24.08.2022
PASSED BY THE HON'BLE FAMILY COURT AT
ALAPPUZHA IN IA 10/2022
Exhibit P5TRUE COPY OF THE ORDER IN CMP NO 3857/2021
DATED 01.01.2021 IN M.C. 02/2021
Exhibit P6TRUE COPY OF THE ORDER DATED 10.05.2022 IN
CMP NO 4143/2021 IN MC NO 02/2021
Exhibit P7THE MEDICAL REPORT OF THE CHILD DATED
30.04.2022 ISSUED BY DR. SUSAN MARY
ZACHARIA

Anjali Menon v. Gireesh v R.

Case brief

What is this about?

What did the court decide?

Anjali Menon v. Gireesh v R.

Case brief

What is this about?

What did the court decide?

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