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2021 DIGILAW 1044 (KER)

Ralith Ram, S/o. Raman v. Ashna, D/o. Shanmughan

2021-11-16

A.MUHAMED MUSTAQUE, SOPHY THOMAS

body2021
JUDGMENT : Sophy Thomas, J. The appellant herein is the petitioner in O.P. No.633 of 2018 of the Family Court, Thrissur and the respondent is his divorced wife. He filed that O.P. for getting permanent custody of the minor child Rishab P. Ralith who is the only child born in their wedlock. The appellant married the respondent on 03.05.2009 and the minor Rishab was born on 06.07.2010. In the year 2016, the matrimonial relationship between the appellant and the respondent got strained and they started living separately, and later obtained divorce as per the decree in O.P. No.2132 of 2017. Thereafter, the appellant filed O.P. No.633 of 2018 for getting permanent custody of the minor child. The respondent-wife opposed that petition stating that, the appellant was having intimate relationship with one Smt. Renu, and whenever she objected that relationship, she was subjected to cruelty, and later she was sent out of her matrimonial home along with her child. She was granted divorce on the ground of matrimonial cruelties from the part of the appellant. So the appellant is not entitled for permanent custody of the child. She is doing everything for the welfare of the child, and the child has to be under her custody permanently, subject to the interim custody granted by the Family Court, which she is complying with. 2. The Family Court considered that O.P. along with O.P. No.1945 of 2017 filed by the parents of the appellant, for getting visitation rights to share love with their grandchild. PWs 1 to 4 were examined and Exts.A1 to A15 were marked from the side of the appellant and RW1 was examined and Exts.B1 to B26 were marked from the side of the respondent. After evaluating the available facts and evidence, and on hearing the rival contentions of either side, the Family Court dismissed O.P. No.633 of 2018 denying his prayer for permanent custody and allowed interim custody of the child from 10 a.m. on every 2nd and 4th Saturdays till 5 p.m. on the following Sunday and also for the first ten days in the month of April and May during summer vacations, fixing the venue for exchange as the office of the Family Court, Thrissur. Challenging the impugned order, the petitioner-father has come up with this appeal. 3. Challenging the impugned order, the petitioner-father has come up with this appeal. 3. The appellant-husband would say that he is preferable to have permanent custody of the child as his educational and financial status are better than that of the respondent-wife. Moreover, the child is now 11 years old and he is able to take intelligent decision on his own. The child had expressed his willingness before the Family Court to live with his father permanently. But, the Family Court erred in finding that the child was not old enough to form an intelligent preference and so his O.P. was dismissed permitting the respondent to have permanent custody of the child, and limiting his claim to have only interim custody for few days. According to him, the respondent is leading a flirting life and she is not looking after the child properly. She is not educated enough, and her financial status also is not good enough when compared to that of the appellant. So she is not competent to get permanent custody of the child. 4. The matrimonial relationship of the appellant and the respondent was put to an end legally, as per the decree in O.P. No.2132 of 2017 filed by the respondent. Ext.A2, copy of the order in O.P. No.2132 of 2017, speaks about the matrimonial cruelty extended to the respondent-wife by the appellant-husband. It was found that he was keeping an uncharitable intimacy with one Smt. Renu, who is the wife of his employer, and he continued that intimacy ignoring the protest of his wife. Admittedly, Smt. Renu was attending him in hospital as well as in his house, in exclusion of his wife. Though the allegation of adultery was not proved against him, the very reason for their separation was found to be the unholy or uncharitable intimacy between himself and Smt. Renu. Admittedly that order is not challenged by him. 5. The appellant is admitting that since the respondent was not ready to accept his relationship with Smt. Renu and her family, he filed an O.P. for judicial separation within two weeks of her leaving the matrimonial home. If it was really a misunderstanding from her part, he could have waited for some time to have an amicable settlement, but without waiting even for two weeks, he rushed to the court for a judicial separation. If it was really a misunderstanding from her part, he could have waited for some time to have an amicable settlement, but without waiting even for two weeks, he rushed to the court for a judicial separation. It will show that for him, relationship with Smt. Renu and family was more important than his own family. 6. In the impugned order, the Family Court found that in spite of the allegations of uncharitable intimacy with Smt. Renu, now also the appellant is not ready to give up his relationship with Smt. Renu. When examined before court as PW1, the appellant would say that the minor is badly in need of the proximity or access with Smt. Renu, and that is absolutely necessary for the overall development of the child. 7. PW4 Renu admitted before court that the appellant approached the Family Court for judicial separation as the respondent could not accept the relationship between herself and the appellant. In categoric terms, she deposed that, even after knowing about such an allegation, she was not ready to withdraw from her relationship with the appellant, as it was not necessary. 8. RW1, the respondent, deposed before court that her main objection for handing over the child to the appellant is that, still he is moving around with Smt. Renu. She relied on Ext.B2 series photographs to prove that allegation. The appellant and Smt. Renu are not denying their intimate relationship but, according to them, their relationship is just that of a brother and sister. But Ext.A2 order coupled with the testimony of RW1 may tempt a prudent man to think otherwise. 9. The Family Court found that the allegations of the respondent ignoring the child and not giving medical attention to the child etc. have no factual foundation. The allegation that she was leading a flirting life with strangers was also found baseless. The Family Court rightly found that when the respondent was living with the appellant, he had no such allegations against her. Now the respondent is throwing aspersions against her, connecting her name even with her own cousin brothers. At the same time, he would say that his relationship with his employer's wife is so divine as that of a brother and sister. 10. Now the respondent is throwing aspersions against her, connecting her name even with her own cousin brothers. At the same time, he would say that his relationship with his employer's wife is so divine as that of a brother and sister. 10. The testimony of PW1 and PW4, the appellant and Smt. Renu respectively, is to the effect that the minor child is in dire need of the company of Smt. Renu for his overall development. There is an adage in Malayalam that which means even ten foster mothers may not be equivalent to biological mother. When biological mother is there, no better person is there to look after the welfare and well being of the minor child. 11. This Court, in Ancy A. and others vs. Station House Officer, Kulathoopuzha Police Station and others reported in 2018 (1) KLT 698 asserted, Quoting Cardinal Mermillod that “a mother is she who can take the place of all others, but whose place no one else can take”. 12. The child expressed his willingness to be with his father, when this Court interacted with him. As a little boy, the minor child Rishab may be interested in roaming around in cars, going to malls and eateries along with his father and friends. A mother may scold, advice or may even impose little punishments on her child to correct him, guide him, and to make him a better person to live in this world. It cannot be termed as want of love and affection from the part of the mother and without which, a child cannot develop into a responsible and realistic person useful to the society. 13. In family disputes, the present trend we find is that the partners of an erstwhile marriage are using their children to throw mud against each other and thereby extending the cruelties even after their separation. Children are used as mere chattels or playthings at the hands of estranged parents unmindful of its impact on the children. They may brainwash the children to keep them under their custody and to use them against the other. In the case in hand, the Family Court found that when he interacted with the child, the child divulged that the appellant-father told him that if he gets permanent custody of the child, he can take him to the mother as and when she desires. In the case in hand, the Family Court found that when he interacted with the child, the child divulged that the appellant-father told him that if he gets permanent custody of the child, he can take him to the mother as and when she desires. But, if the child is given custody to the mother, she will never allow him to go with his father. So, the Family Court found that the intention expressed by the child to go with the father was not liable to be accepted as he was not old enough to form an intelligent preference. 14. The educational qualification or financial affluence of the father cannot outweigh the warmth of a mother's love and care, unless she is found not suitable to hold custody of the child. The Family Court found that since birth, the child is permanently staying with his mother, who is capable to maintain him in a befitting manner. The child is excelling in his studies as well as in extra curricular activities as borne out from records. The appellant has not disputed the same. 15. In Githa Hariharan vs. Reserve Bank of India reported in AIR 1999 SC 1149 , the Apex Court held that though Section 6 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred as 'the Act') provides that, natural guardian of a Hindu minor in the case of a boy or an unmarried girl is the father and after him the mother, the right of the mother to act as the guardian does not stand obliterated during the life time of father. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship. That provision cannot have any superseding effect on the paramount consideration as to what is conducive to the welfare of the minor. The 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. Section 13 of the Act makes it manifestly clear that the paramount consideration is the welfare of the minor child and not the statutory rights of the parents. Section 13 of the Act makes it manifestly clear that the paramount consideration is the welfare of the minor child and not the statutory rights of the parents. When the court is confronted with conflicting demands made by the parents for the custody of the minor children, the issue needs consideration not only on legalistic basis, but also on human angles. (Reliance placed on Sajil T. Devadas vs. Honey Sabu, ILR 2018 (4) Ker. 884). 16. In the case in hand, PW3 and PW4, the employer and his wife, are so eager to get custody of the child with the appellant, and according to the appellant, proximity and access of the child with PW4 is absolutely necessary for the proper development of the child. That is the very reason for the respondent to object custody of the child with his father, and that was the basic reason for their separation also. Under that circumstance, as rightly held by the Family Court, even if the child expressed his intention to go with his father, it cannot be termed as an intelligent preference. Moreover it has come out in evidence through PW4, that the appellant has to often perform outstation travels in connection with his job. If so, his age old and sick parents may not be able to look after the affairs of the child, whereas the respondent-mother and her parents are always available to take care of the child. 17. So, we are of the view that, let the child continue in the custody of his mother till he completes his schooling. It would be better for the child also, to continue in the same school in the same ambience, with same set of friends. During that period, the appellant can have weekend custody of the child every Friday from 5 p.m. till 5 p.m. on the ensuing Sunday and also during the first half of Onam, Christmas and summer vacation. On Saturdays, when the child is having class (regular/special), appellant can have custody of the child from 5 p.m. on Saturday till 5 p.m. on ensuing Sunday. After the child completes his 10th Standard, if the appellant wants to get permanent custody of the child, he can move the Family Court for appropriate orders in accordance with the then prevailing circumstances. In the result, we dismiss this appeal in regard to challenge on permanent custody, without costs. After the child completes his 10th Standard, if the appellant wants to get permanent custody of the child, he can move the Family Court for appropriate orders in accordance with the then prevailing circumstances. In the result, we dismiss this appeal in regard to challenge on permanent custody, without costs. The permanent custody of the child shall be with the respondent-mother. The interim custody granted by the Family Court is modified as follows: The appellant shall have custody of the minor child on every Friday from 5 p.m. till 5 p.m. on ensuing Sunday, and also during the first half of Onam, Christmas and summer vacation. On Saturdays in which the child is having class (regular/special), appellant can have custody of the child only from 5 p.m. on Saturday, till 5 p.m. on ensuing Sunday. The venue of exchange shall continue to be the premises of the Family Court, Thrissur until a different venue is agreed upon by the parties on mutual consensus.