Father appealed Family Court order denying him permanent custody of his two minor children, who preferred remaining with maternal grandparents and uncle. Court dismissed appeal and interim application citing children's welfare and expressed desire not to reside with father. Relief: None granted.
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
THURSDAY, THE 5TH DAY OF JANUARY 2023 / 15TH POUSHA, 1944
MAT.APPEAL NO. 539 OF 2022
AGAINST THE JUDGMENT DATED 30.10.2021 IN O.P.NO.1189 OF 2016 ON THE FILE OF THE FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER:
ALDRIN T.F. AGED 52 YEARS, S/O.T.J.FRANCIS, THERUVIPARAMPIL, KUMBALANGHI P.O., ERNAKULAM - 682 007.
BY ADVS. K.A.JALEEL C.Y.VINOD KUMAR
RESPONDENTS/RESPONDENTS:
1 K.K.JOSEPH AGED 85 YEARS S/O.CHACKO JOSEPH, KURUPPATH HOUSE, OLANAD, VARAPPUZHA P.O., ERNAKULAM - 683 517.
2 PHILO JOSEPH AGED 80 YEARS W/O.K.K.JOSEPH, KURUPPATH HOUSE, OLANAD, VARAPPUZHA P.O., ERNAKULAM - 683 517.
3 K.J.JOB AGED 54 YEARS S/O.K.K.JOSEPH, KURUPPATH HOUSE, OLANAD, VARAPPUZHA P.O., ERNAKULAM - 683 517.
BY ADVS. SANTHAN V.NAIR CHRISTEENA P GEORGE
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THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 23.12.2022, THE COURT ON 05.01.2023 DELIVERED THE FOLLOWING:
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JUDGMENT
P.G. Ajithkumar, J.
The petitioner in O.P.No.1189 of 2016 on the file of the Family Court, Ernakulam is the appellant. He is aggrieved by the judgment of the Family Court dated 30.10.2021, by which his prayer for appointing him as the guardian and to give them custody of the children was declined. He challenges correctness and legality of the said judgment in this appeal filed under Section 19(1) of the Family Courts Act, 1984.
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half an hour. After such interaction, we talked to them and ascertained their desire.
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audio calls to the children between 6.00 p.m. and 6.30 p.m. on every Monday.
and in that view of the matter, it is essential to allow the appellant to have custody of the children. The appellant would allege that respondents No. 1 and 2, the grandparents are not in a position to look after the affairs of the children due to their old age and the 3rd respondent being a drunkard, there is nobody to take care of the affairs of the children. The appellant accordingly would claim that for the welfare of the children, their custody has to be entrusted with him, but the Family Court failed to appreciate the said factual situations in its proper perspective.
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the Family Court refused to allow the appellant to have permanent custody of the children. It is submitted by the learned counsel for the respondents that there is no reason to interfere with the findings of the Family Court.
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serious attempts from the part of the appellant to develop an emotional attachment with the children during this period. It is true that the appellant has been working abroad while the children are in Kerala pursuing their studies at Koonammavu. Therefore, the opportunity for interaction was less. At the same time, estrangement between the appellant and Smt. Betty also contributed to such separation of the father and the children.
the mother till her death and after that along with the respondents, during our interaction, took a firm stand that they did not want to go along with the father/appellant. Even after the interaction for half an hour, the children struck their stand. The children are now 17 and 16 years of age. They are studying in Plus-2 and Plus-1 classes. They are intelligent enough to understand things. Being minors, their decisions and desires may not be that rational as that of an aged or an adult person. However, coming to the welfare of the children and their interest, which are of paramount consideration while deciding the question of their custody, their preference has to be given due importance.
1 SCC 840] the Apex Court reminded the Courts about the need
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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.
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
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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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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. (underline supplied)
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Accordingly, the appeal as well as I.A.No.3 of 2022 are dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr/Dxy
3 issues framed by the court
Whether the Family Court Act provision regarding appeals in custody matters applies here
Whether the father-appellant should be granted permanent custody of the minor children
Whether the interim custody application for Christmas should be allowed
Colour shows how this judgement treated each authority
Rosy Jacob v. Jacob A. ChakramakkalReferred¶47
Rosy Jacob v. Jacob A. Chakramakkal [(1973) SCC 840] · Who else cites this
Yashita Sahu v. State of RajasthanReferred¶52
Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67] · Who else cites this
Vasudha Sethi and others v. Kiran V. Bhaskar and anotherReferred¶63
Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476] · Who else cites this
3 provisions across 2 enactments
ALDRIN T.F.
K.K.JOSEPH
PHILO JOSEPH
K.J.JOB
ANIL K.NARENDRAN
P.G. AJITHKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
