There can be no gainsaying the irrefutable fact as the Kerala High Court also in a most learned, laudable, landmark, latest and logical judgment titled Neena George vs Alwin K Jacob & Ors in O.P.(FC) NO. 588 of 2022 against the order dated 29.09.2022 in I.A. NO.4998 of 2022 in G.O.P. No. 2336 of 2022 of the Family Court, Ernakulam and cited in 2022 LiveLaw (Ker) 574 that was pronounced as recently as on November 1, 2022 has most commendably reiterated the well settled position of law that while considering custody matters, Court must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of the parents.
The Division Bench of Kerala High Court comprising of Hon’ble Mr Justice Anil K Narendran and Hon’ble Mr Justice PG Ajithkumar observed analytically that if the child is denied the opportunity to interact with one of the parents, it certainly will cause snapping of the emotional and psychological bondage. This is exactly what constitutes the hallmark of this brilliant judgment wherein it is laid down forthrightly that the child has the right of company to both the parents and not just one and denying child the right to have contact with even one of them would certainly culminate in snapping of the psychological and emotional bondage.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice PG Ajithkumar for a Division Bench of the Kerala High Court comprising of Hon’ble Mr Justice Anil K Narendran and himself first and foremost puts forth in para 1 that:
The Mother of minor girl Ishaani Sarah Alwin aged 2 years, is the petitioner. She challenges Ext.P4, the order dated 29.09.2022 of the Family Court, Ernakulam in I.A.No.4998 of 2022 in G.O.P No.2336 of 2022.
To put things in perspective, the Division Bench then envisages in para 2 that, On 14.10.2022, notice on admission was directed to be served on the respondents who are the father and grandparents of the child. An order of interim stay till 20.10.2022 was granted. The respondents entered appearance through counsel. The 1st respondent has filed a counter affidavit controverting the allegations of the petitioner.
While elaborating, the Division Bench then points out in para 4 that:
G.O.P No.2336 of 2022 was filed before the Family Court, Ernakulam for the custody of the child alleging that following the marital discord between the petitioner and the 1st respondent she was kicked out of the marital home on 13.08.2022 without allowing her to take the breastfeeding child along with her. It was further alleged that the respondents illegally retained custody of the child, and therefore the petitioner had to approach the police and the Child Welfare Committee, Ernakulam. She also filed W.P(Crl.) No.738 of 2022 before this Court requesting to evoke Habeas Corpus jurisdiction, but she could not get custody of the child. In G.O.P No.2336 of 2022 also no effective steps were taken to restore the custody of the child to the petitioner. Pointing out the said circumstances, the petitioner approached this Court by filing O.P (FC) No.488 of 2022. That O.P was disposed of by this Court on 27.09.2022 with the following directions:
The Family Court, Ernakulam to list Ext.P5 (I.A.No.4998 of 2022 in G.O.P No.2336 of 2022) for consideration on 29.09.2022. Both parties along with the child shall be present before the Family Court, Ernakulam on that day. The Family Court will pass an order regarding interim custody of the child Ishaani Sarah Alwin on the said day or on 30.09.2022.
Be it noted, the Division Bench then states aptly in para 5 that:
Pursuant to the said direction, the Family Court considered the matter. Both parties appeared before the Family Court together with the child. The Family Court noticed that the child was interacting with both the mother and the father. After hearing both sides and considering the materials on record, the Family Court issued the following directions regarding interim custody of the child as per the impugned order:
- The Petitioner/Mother shall give interim custody of the minor child Ishaani Sarah Alwin to the first respondent/Father from 10.30 am on all 2nd Saturdays till 4 pm on ensuing Sundays. The handing over and taking back custody of the child will be in the premises of the Family Court, Ettumanoor.
- The Petitioner/Mother shall give interim custody of the minor child Ishaani Sarah Alwin to the first Respondent/Father from 10.30 am to 4 pm on all Sundays except Second Sundays, in the premises of the Family Court, Ettumanoor.
- The first Respondent/Father is permitted to interact with the minor child through video call between 6.30 pm and 7 pm on all Wednesdays.
As we see, the Division Bench then discloses in para 6 that:
The learned counsel appearing for the petitioner would submit that when the child was given in custody of the respondents, at the premises of the Family Court, not only the respondents, but a few others also interacted with the child whereupon it got tired and exhausted. No doubt, such things resulting in stress and strain to the child should not have happened. It is further contended that the only holiday available to the petitioner is Sunday and when she has to take the child to the Family Court for giving custody to the 1st respondent, it causes much inconvenience to her.
Do note, the Division Bench then specifies clearly in para 7 that:
While disposing of O.P(FC) No.488 of 2022, this Court directed the Family Court to decide the interim custody of the child bearing in mind the principle laid down by the Apex court in Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67].
Most forthrightly, the Division Bench then holds in para 8 that:
In Yashita Sahu 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.
Most significantly and also most remarkably, the Division Bench then minces no words to encapsulate in para 9 what constitutes the real cornerstone of this notable judgment wherein it is effectively postulated that:
In Yashita Sahu 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.
It is worth noting that the Division Bench then while citing a very recent and relevant case law states succinctly in para 10 that:
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 of having the company of both parents.
Finally, the Division Bench then concludes by holding in para 11 that:
It is seen that the Family Court has taken into consideration all such parameters while passing Ext.P4 order. It is no doubt, the welfare of the child is of prime consideration. If the child is denied the opportunity to interact with the father, it certainly will cause snapping of the emotional and psychological bondage with the father and the child. While the child is allowed to be with the mother, there shall be an opportunity for the father to have frequent interaction with the child. Viewed so, we find no reason to interfere with the impugned order. The inconvenience said to be occasioned to the petitioner by traveling to the Family Court, a short distance, cannot be a reason to deny the father the opportunity to interact with the child. In the said circumstances, we find no merit in this original petition. It is accordingly dismissed.
All told, we thus see that the Kerala High Court has made it pretty clear that a child needs the company of not just one parent but of both the parents. It is also made crystal clear in this learned judgment that if a child is made to severe contact with one parent, it certainly will cause snapping of the emotional and psychological bondage. It thus merits no reiteration that the Courts while ruling in similar such cases must always pay heed to what the Division Bench of the Kerala High Court has laid down so very elegantly, eloquently and effectively in this leading case! No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
