C.S. Dias, J.
“Co-parenting. It’s not a competition between the two homes. It’s a collaboration between the parents in doing what is best for the children” – Heather Hetchler.
1. The appellant had sought to declare him as the legal guardian of his minor children, born in the wedlock with the respondent.
2. The appellant had averred in O.P.No.635/2018 filed before the Family Court, that his marital felicity with the respondent was short-lived. He realised that the respondent had perpetrated a fraud on him in getting his consent for the marriage: she had suppressed about her congenital mental illness. If the children are permitted to live with the respondent, it would affect their paramount welfare and best interest. The appellant is ready to look after to the children. He being their natural guardian is willing to provide them with the best of education, which would be beneficial for their physical and mental development. The appellant is paying the respondent and the children monthly maintenance allowance at the rate of Rs.7,000/- per month, as ordered by Court. The appellant is ready to take complete responsibility of the children. He prayed that the original petition be allowed.
3. The respondent denied the allegations in the original petition and contended that, if the children are permitted to live with the appellant, it will affect their welfare and best interest. The children are aged only five years and four years. They require constant care and protection of the respondent. The appellant is a drunkard. He has frequently harassed the children while in an inebriated state. He is not in a position to look after to the welfare of the children. Hence, the original petition may be dismissed.
4. During the pendency of the proceedings, the appellant sought interim custody of the children during weekends and the school holidays. The Family Court allowed the appellant to have interim custody of the children on the first Saturday of every month from 10.00 a.m. to 3.00 p.m.
5. Dissatisfied with the order, the appellant had filed O.P (FC) 82/2019 before this Court. This Court, by its judgment dated 30.7.2019, modified the impugned order and granted the appellant interim custody of the children from 10.00 a.m. on the last Saturday of every month till 4.00 p.m. on the ensuing Sunday.
6. The appellant had also filed O.P.No.36/2018, seeking a decree of divorce, to dissolve his marriage with the respondent, on the ground of cruelty as provided under Sec.13 (1) (ia) of the Hindu Marriage Act,
7. The Family Court consolidated and jointly tried O.P.No. 635/2018 and O.P.No.36/2018.
8. The appellant and a witness were examined as PWs 1 and 2. Exts.A-1 (a) and A-1 (b) were marked through them. The respondent and two witnesses were examined as RWs 1 to 3.
9. The Family Court, by a common judgment, dismissed O.P No.36/2018 and partly allowed O.P No.635/2018.
10. The Family Court by impugned judgment disallowed the appellant’s claim for guardianship and permanent custody but granted him visitation rights; to see and interact with the children on the first Saturday of every month between 10.30 a.m. and 3.30 p.m; for five days every year during Onam and Christmas vacations; and for a fortnight during the summer vacation.
11. Aggrieved by the impugned judgment, this appeal is filed.
12. During the pendency of this appeal, the appellant filed I.A No.2/2020, seeking interim overnight custody of the children on every second and last Saturdays of the month. The application was opposed by the respondent.
13. When the application was taken up for hearing, as the lis in the appeal and the application are identical, i.e., the appellant's right to have custody of the children, with the consent of the counsel for both parties, we decided to hear the appeal itself.
14. The learned counsel for the appellant brought to our notice that as against the judgment in O.P No.36/2018, Mat. Appeal No.170 of 2020 is pending consideration. We make it clear that the disposal of this appeal shall in no way affect the independent consideration of Mat. Appeal No.170/2020.
15. Heard the learned counsel for the appellant and the learned counsel for the respondent.
16. We have re-appreciated the pleadings and evidence on record. The parties had let in evidence principally on the issue in O.P No.36/2018.
17. It is an admitted fact that the older child is now aged six years, and the younger child is now aged five years. The children are studying in a school nearby to the respondent’s residence. The respondent is working as a Nurse in the District Hospital, Palakkad. She goes for work after the children leave for school and returns home by the time the children come back from school. Her father is a retired employee and her mother is running a tailoring shop at their residence. The respondent's parents are always available at home, where the children are living. Conversely, the appellant is conducting a hardware shop at Kodungallur. His regular business hours are from 8.30 a.m. to 8.30 p.m. He is residing with his aged mother.
18. The Hon'ble Supreme Court in Rosy Jacob v. Jacob A.Chakramakkal [(1973) 1 SCC 840] observed as follows:
“15. The children are not mere chattels: nor are they play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the consideration 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”.
19. In Anjali Kapoor v. Rajiv Baijal [(2009) 7 SCC 322] the Supreme Court held that, in a battle for custody of a child, Courts should see what would best serve the welfare and interest of the child, which is the sole and predominant criteria and not the legal rights of the warring parents.
20. In a recent decision in Yashita Sahu v. State of Rajasthan and others [2020 SCC Online SC 50] the Supreme Court observed as follows:
“18. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that 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 the custody of the child. The court must therefore be very vary of what is said by each of the spouses.
19. A child, especially a child of tender years requires the love, affection, company, 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, 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 the 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 the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.
20. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the 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.
21. Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody.
22. In addition to 'Visitation Rights', 'Contact Rights' are also important for development of the child specially in cases where both parents live in different states or countries. The concept of contact rights in the modern age would be contact by telephone, e-mail or in fact, we feel the best system of contact, if available between the parties should be video calling. With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes everyday. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if we cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each.
21. After appreciating the pleadings and evidence on record, we find that the children are of tender age and school going. The respondent and her parents are available at home to look after the welfare of the children. There is no incriminating material disqualifying the respondent from having the permanent custody of the children. The Family Court has rightly balanced the rights of the parents and the welfare of the children by granting the respondent permanent custody of the children with visitation rights to the appellant. We are satisfied that the paramount welfare and better interest of the children would be secured if they are permitted to be in the permanent custody of the respondent by reserving the visitation rights of the appellant.
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Considering the parameters in Yashita Sahu (supra), we are inclined to modify the visitation rights of the appellant, then what has been granted by the Family Court so that the children can be in the company of both parents and have their love and affection. 23. Accordingly, we partly allow this appeal by modifying the order of the Family Court. We order that the appellant shall have visitation rights of the children from 10.00 a.m. on the last Saturday of every month till 4.00 p.m. on the ensuing Sunday; interim custody of the children for five days during school holidays of Onam and Christmas vacations; and interim custody of the children for fifteen days in April and May during the children's school vacation. The venue for the exchange of the children shall be before the Family Court, Ottapalam. In addition to the above visitation rights, the appellant is granted contact rights with the children. The appellant shall be permitted by the respondent, to talk to the children over mobile phone everyday for 5-10 minutes between 7.00 p.m and 9.00 p.m. Needless to state, in case of any change of circumstances, the parties are at liberty to move the Family Court to seek a modification of the visitation rights ordered in this judgment.