The High Court dismissed a writ petition invoking Article 227 challenging Family Court orders on child custody and visitation. Upholding the lower court's decisions, emphasizing parental support requirements, and finding no impropriety warranting judicial interference.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 16TH DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 O.P.(FC) NO. 651 OF 2021
AGAINST THE COMMON ORDER DATED 04.10.2021 IN I.A.NO.6599 OF 2019, I.A.NO.6 OF 2021, I.A.NO.7 OF 2021 AND I.A.NO.9 OF 2021
IN O.P.NO.1621 OF 2019 OF THE FAMILY COURT, THRISSUR
PETITIONER:
SAYANA
AGED 32 YEARS, D/O. IQBAL MOHAMMED, PUTHUVEETTIL HOUSE, THAIKKAD POST, GURUVAYOOR, CHAVAKKAD TALUK, THRISSUR - 680104.
BY ADV R.PADMAKUMARI
RESPONDENT:
ABDUL RAZAK IBRAHIM
AGED 36 YEARS, S/O. T. M. IBRAHIM, VALIYAPARAMBIL HOUSE, RAYIRIMANGALAM DESOM, TANUR VILLAGE, TIRUR TALUK, TANUR P.O., MALAPPURAM DISTRICT.
BY ADV T.P.SAJID
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Ajithkumar, J.
This Original Petition is filed under Article 227 of the Constitution of India challenging Ext.P6 order dated 04.10.2021 of the Family Court, Thrissur.
“6. Considering all these documents, I am inclined to allow the petitioner to have interim custody of the child on first half of Onam, Christmas and Summer vacations. Also the petitioner is allowed to interact with the child over telephone on every Wednesday and Sunday between 7.30 pm and 8 pm.
to file directing urgent notice on the respondent. On
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22.03.2022, the parties were directed to appear before this Court along with the child on 31.03.2022. Parties as well as the child appeared before this Court on 31.03.2022. After interacting with the parents and the child, this Court passed the following order:
“The respondent/father has come down from Dubai. We allow the child to be in the custody of the father. The child has some dislikes. However, we find that, that may not be a reason to deny father the contact and visitation rights. We direct both parties not to reflect their feelings upon the child. Both are restrained from speaking against each other. We also allow both parties to record the video conferencing. It is submitted that the child is having exams till 08.04.2022.”
order regarding custody of the child. As reflected from Ext.P9, which is a copy of A-Diary in O.P.No.1621 of 2019, the
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order reads thus:
“xxxxx. IA 15/22–Heard both sides. As per order in IA 6599/2019 vacation custody already granted. There is no stay by the Hon'ble HC. Moreover, the Hon'ble HC as per order dated 31.03.2022 in OP (FC) 651/2021 specifically held as follows “we allow the child to be in the custody of the father”. Therefore the respondent is directed to comply with direction for vacation custody. But it is pointed out that the minor is studying in Bangalore and there is no Onam and X'mas vacation in Bangalore. Hence the respondent is directed to hand over custody at 10 AM on 17.09.2022 till 5 PM on 18.09.2022 at the office of this court. IA allowed accordingly.”
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6. 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.
love, affection, company, and protection of both parents. This
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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
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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 child must get precedence over the individual or personal rights of the parents.
The original petition is accordingly dismissed.
Sd/- ANIL K. NARENDRAN, JUDGE
Sd/- P.G. AJITHKUMAR, JUDGE
dkr
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APPENDIX OF OP (FC) 651/2021
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE MEMORANDUM OF ORIGINAL PETITION IN OP 1621/2019 ON THE FILES OF THE FAMILY COURT, THRISSUR. Exhibit P2 TRUE COPY OF THE JUDGMENT IN WP(CRL) 126/2018 DATED 09.04.2018 ON THE FILES OF HIGH COURT OF KERALA. Exhibit P3 THE TRUE COPY OF THE COUNTER IN IA 6599/2019 BEFORE THE FAMILY COURT, THRISSUR. Exhibit P4 THE TRUE COPY OF THE COUNTER IN IA 6/2021 BEFORE THE FAMILY COURT, THRISSUR. Exhibit P5 THE TRUE COPY OF THE IA 7/2021 AND ITS COUNTER FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THRISSUR. Exhibit P6 THE TRUE COPY OF THE COMMON ORDER IN IA 6599/2019, I.A.6/2021, I.A.7/2021 & I.A.9/2021 DATED 04.10.2021 IN OP 1621/2019 ON THE FILES OF THE FAMILY COURT, THRISSUR. Exhibit P7 THE TRUE COPY OF THE JUDGMENT DATED 31.10.2019 WP(CRL) 371/2019 ON THE FILES OF THE HIGH COURT.
3 issues framed by the court
Whether the Family Court's orders regarding custody and visitation under Article 227 warrant interference by the High Court.
Whether arbitrary orders prejudicial to the child's interest justify quashing the lower court's custody decisions.
Whether the child's welfare is the paramount consideration overriding parental rights in custody disputes.
Colour shows how this judgement treated each authority
Yashita Sahu v. State of RajasthanExplained¶42
Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67] · Who else cites this
Vasudha Sethi and others v. Kiran V. Bhaskar and anotherExplained¶52
Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476] · Who else cites this
Sayana
Abdul Razak Ibrahim
Anil K.Narendran
P.G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
