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2019 DIGILAW 879 (KER)

Amrutha D/o Suresh v. J. Balakumar S/o Jayakumar

2019-10-29

ANNIE JOHN, K.HARILAL

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JUDGMENT : ANNIE JOHN, J. 1. The petitioner, the wife of the respondent, filed Ext.P3 MC under the Protection of Women from Domestic Violence Act, 2005 and sought for a protection order and compensation for Rs. 3 crores. She has also filed a petition for return of gold ornaments. The respondent/husband has filed OP under the Guardian and Wards Act for appointing him as the guardian of the minor child and to hand over custody. The Family Court, as per Ext.P5, was pleased to order only the access of the child in the court premises. He has challenged Ext.P5 before this Court and this Court, by Ext.P6 judgment directed the court below to pass a reasoned order after ascertaining the factual aspects. In the light of Ext.P6, the court below was bound to consider the factual contentions with regard to the safety of the child, if the child is handed over to the respondent. But, later GOP No. 1501 of 2016 was dismissed for default and thereafter this Court, by a common judgment in OP (FC) Nos. 341 and 393 of 2019, remanded the matter and after condonation of delay, GOP No. 1501 of 2016 was restored. I.A. Nos. 4810 and 4184 of 2019, which were filed seeking custody during Onam vacation and the custody pending disposal of the OP, were also allowed by the court below by the impugned order under Ext.P16. Highly aggrieved by the same, this OP (FC) has been filed. 2. The learned counsel for the petitioner contends that there is eminent threat to the safety of the child, if overnight custody is granted to the respondent and that the issuance of Ext.P16 order is illegal and arbitrary. 3. When the matter was taken up for hearing, the learned counsel appearing for both the parties argued strenuously and according to the learned counsel for the petitioner, the order passed by the court below is illegal and unjust. He has further submitted that overnight custody of the child may be avoided and the petitioner has no objection in handing over the custody of the child during the day time. 4. After hearing the learned counsel, we understood that the grievance of the petitioner against the order passed by the Family Court below is regarding the overnight custody given to the respondent. 4. After hearing the learned counsel, we understood that the grievance of the petitioner against the order passed by the Family Court below is regarding the overnight custody given to the respondent. In this connection, we have gone through the reliefs portion granted by the court below and we find that the petitioner was directed to give custody of the child "Avantika" to the respondent at 6 p.m. on every Fridays preceding second Saturdays and the respondent shall return the child at 4.30 p.m. on the ensuing Sundays. It was also ordered that the respondent is entitled to have custody of the child for the first five days each during Onam and Christmas holidays and first half of summer vacation. Over and above, it was also ordered to the respondent to permit the child to have video call with the petitioner daily while in custody. The petitioner has also produced certain documents before us to prove that the overnight custody which was given to the respondent created lots of problems and the details of chatting and video calling were produced before this Court. We could understand that the petitioner is watching the child apprehensively in each and every moment, when the child was in the custody of the respondent, the father of the child. Even during night hours also, the petitioner was watching the child and causing mental stress and panic to her as evidenced from the chatting details. During argument, both sides conceded to the fact that the petitioner has become panic and tensed. Hence, she has called the police, sent them to the respondent's residence and created dramatic scene over there during night hours, which should have avoided by her. In this connection, it is pertinent to extract the following decisions. 5. In Nil Ratan Kundu and Another vs. Abhijit Kundu, (2008) 9 SCC 413 , it is held that a child is not "property" or "commodity" and such issues should be handled with love, affection, sentiments and applying human touch to the problem. 6. In Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others, 2019 (3) KHC 167 , it is held that the welfare of the child has to be determined owing to the facts and circumstances of each case and the court cannot take a pedantic approach. 7. In fact, the petitioner is a playback singer and the respondent is a cinematic artistic. 7. In fact, the petitioner is a playback singer and the respondent is a cinematic artistic. They may have luxurious life. They are fighting each other for the custody of the ward inch by inch by lodging interlocutory applications one by one incessantly. They should realise the normal and the peaceful life of their child. The luxury will come and go; but life will be otherwise and it should be enjoyed peacefully. Children are the gift of God and guests of ours. We should remind and make aware of both sides that though minor, the child has the fundamental right to be protected by parents. If parents violates the same, the court has to safeguard the right of a child. Parents have no right to decide according to their wishes. Here, the child is undergoing mental stress as evidenced from the chatting details. Thus, we have got a considered view that video calling should be avoided whenever the child is in the custody of the respondent or petitioner. When we analysed the facts projected by either side, we understood that the video calling permitted by the court below created lots of nuisance and it disturbed the peaceful life of the child. The child born out of the wedlock of the petitioner and the respondent, is 7 years old and she is sandwiched between the petitioner and the respondent, and her life will be spoiled by the dramatic attack by either side. We should remind them that life is not a drama. Neither the father or the mother is concerned with mental agony that may be caused to the child while fighting for the custody of the child. We remind them that, if they continue to do so, the court has power to take away the child from the custody of both parents and entrust the child with the Institutions set up for the same invoking the provisions under the Juvenile Justice Act for safeguarding proper care and safety of the child. We are concerned about the "welfare of the child" and while dealing with the matters under the Guardian and Wards Act, the court has to consider the paramount welfare of the child. 8. We are concerned about the "welfare of the child" and while dealing with the matters under the Guardian and Wards Act, the court has to consider the paramount welfare of the child. 8. In Kajal vs. Rajesh Rana, 2016 KHC 2420 it is held that in case of custody of minor, the dominant matter for the consideration before the court is the welfare of the child, which cannot be measured by money or by physical comfort. The word welfare must be taken in its widest sense. The moral or religious welfare of the child as well as his physical well-being and the tie of affection have not to be disregarded. 9. The criteria is to consider the welfare of the child alone and not the rights of the parents. Even the child has got her own rights, which cannot be curtailed by the parents. If the parents are not considering the welfare of the children, of course the Court can act upon it and can take a proper decision in the matter. The question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties. It would be in the interest and welfare of minor that she would be permitted to be in the custody of both the parents. 10. In Rosy Jacob vs. Jacob A. Chakramakkal, (1973) 1 SCC 840 , it is held that the children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful 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 welfare of the minor children and the rights of their respective parents over them. 11. In this case, there was an attempt on the part of the petitioner to make a picture in the ward's mind that she is not safe at the residence of the respondent. 11. In this case, there was an attempt on the part of the petitioner to make a picture in the ward's mind that she is not safe at the residence of the respondent. But, the details of chatting and video calling would reveal that the petitioner is not giving peaceful life to the child and causing mental stress during night hours, while she is in the custody of the respondent, who is none other than her father. The intention of the petitioner is to give evidence before the court that the life of ward at the residence of respondent is in danger. Such a dramatic acts of the petitioner cannot be looked into. It is pertinent to note that the child lost her peaceful life along with her parents. We do not find any reason for not giving the overnight custody to the respondent. Therefore, the order of lower court is hereby confirmed, except certain modifications. 12. Except the relief No. 5, all other reliefs granted by the court below is hereby confirmed, and the relief No. 5 in Ext.P16 order that the respondent would permit the child to have video call with the petitioner while in custody, is hereby set aside. We make it clear that whenever the child is in the custody of either side, the other side is not permitted to have a video call with the child. 13. With the above modification in the impugned order, this OP (FC) is dismissed.