1. The petitioner, who is the respondent in O.P.No.1190 of 2019 on the file of the Family Court, Mavelikkara, has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order directing the Family Court, Mavelikkara to dispose of I.A.No.2 of 2022, as early as possible, to enable him to have interim custody of the minor child by name, ‘Salmanul Farisi’, aged 11 years and to have interim custody of the child during Christmas Holidays. The petitioner has also sought for an order directing the Family Court to hear I.A.Nos.501 and 502 of 2022 (R.P.No.12 of 2022) in OP(G&W) No.1190 of 2019, within a time frame to be fixed by this Court. OP(G&W) No.1190 of 2019 is one filed by the respondent herein-mother, seeking permanent custody of the minor child. In the said original petition, the Family Court passed Ext.P2 order dated 12.07.2021, whereby, she was permitted to continue with the custody of the minor child until further orders. Ext.P2 order is an ex-parte order. To set aside that order dated 12.07.2021 in OP(G&W) No.1190 of 2019, the petitioner filed I.A.No.501 of 2022. The said application was accompanied by I.A.No.502 of 2022 seeking an order to condone the delay on 173 days in filing the former application. During the pendency of those interlocutory applications, the petitioner herein-father filed I.A.No.2 of 2022, seeking interim custody of the minor child for the period referred to in that interlocutory application. Thereafter, the petitioner moved before this Court, seeking the aforesaid reliefs.

2. On 22.12.2022, when this original petition came up for admission, this Court issued notice on admission by special messenger to the respondent, returnable by 27.12.2022.

3. On 27.12.2022, Adv. S. Noushad, the learned counsel, took notice for the respondent, who sought time to file counter affidavit. This Court passed an order dated 27.12.2022. Paragraph 2 of that order reads thus;

2. On a consideration of the pleadings and materials on record and the fact that Exts.P3, P4 and P6 applications are pending consideration before the Family Court and that the petitioner has come on short leave from abroad and has not see his son for the last more than three years, we direct the power of attorney holder of the respondent Sri.Abdul Rasheed-the custodian of the child, to produce the child named ‘Salmanul Farisi’ before this Court on 30.12.2022 at 10.15 A.M, to provide interim custody of the child to the petitioner during the day on 30.12.2022. The learned counsel for the respondent undertakes that the child would be produced on 30.12.2022.

4. The said order was followed by the order dated 30.12.2022 which reads thus;

Petitioner is the father of the minor male child, aged 11 years. O.P.(G&W) No.1190/2019 filed by the respondent is pending before the Family Court, Mavelikkara. The petitioner/father is employed in UAE. Availing leave from his employer, the petitioner has come back to his native place in Kerala to see his child. He filed an application as I.A.No.2/2022 seeking temporary custody of the child before the Family Court, but the same stands posted to 25.1.2023, on account of nonappearance of the respondent/mother. It is submitted that the petitioner has to leave India by the 10th of January, 2023. It is in such circumstances that the present Original Petition is filed.

2. As per order dated 27.12.2022, a Division Bench of this Court directed production of the child before us.

3. We have interacted with the child, the petitioner/ father and the maternal grandfather of the child, who is also holding the Power of Attorney of the respondent/mother.

4. Although the child initially expressed some reservation in going with his father, we understood that the child has got bonding with the father and that his reservation is in the context of an alleged drinking habit of the father. However, the maternal grandfather of the child expressed strong objection in leaving the child with the father. According to him, such a course may even endanger the life of the child.

5. We have heard the learned counsel appearing on the respective sides. We are of the opinion that there is no threat to the life of the child in the hands of his father and that the objection prima facie stems from the marital discord between the spouses. We are of the firm view that the petitioner, being the father, is entitled to the custody of the child for a period of two days, for which course, the child is also amenable, subject to the reservation afore referred. The petitioner undertook before us that he will not consume alcohol during the time the ward is given custody of. In fact, he maintains that he is not in the habit of consuming alcohol.

In the circumstances, we direct the child to be left to the custody of the petitioner/father from 4 p.m. today till 9 a.m. on 01.01.2023. The petitioner shall take the child from the custody of the maternal grandfather of the child at 4 p.m. today from the premises of the Magistrate Court, Haripad and shall drop the child back before 10 a.m. on 01.01.2023 at the house of the maternal grandfather.

The Family Court, Mavelikkara shall make every endeavour to see that I.A.Nos.501/2022 and 502/2022 filed by the petitioner are heard and disposed of without delay.

5. On 03.01.2023 when I.A.No.1 of 2023 filed by the petitioner-father seeking an order directing the respondentmother to comply with the order of this Court dated 30.12.2022 for production of the minor child came up for consideration, none appeared for the respondent-mother. Therefore, by order dated 03.01.2023 fresh notice by special messenger was ordered to the respondent, returnable by 05.01.2023. On 05.01.2023 this Court passed an order directing both parties to be personally present in Court on 06.01.2023 at 10:15 a.m., along with the minor child.

6. On 06.01.2023, when this original petition came up for consideration, this Court passed an order at 10:15 a.m., which reads thus;

Show the name of the learned Senior Government Pleader in the cause list.

2. In this original petition, the Vacation Bench passed an order dated 27.12.2022, which was followed by an order dated 30.12.2022, regarding interim custody of the minor child, namely “Salmanul Farisi”. On 03.01.2023, when I.A.No.1 of 2023 filed by the petitioner came up for consideration, alleging non-compliance of the direction contained in the order dated 30.12.2022, there was no appearance for the respondent. In such circumstances, considering the fact that the petitioner-father has to leave for UAE on 10th January 2023, this Court issued notice by special messenger to respondent in that interlocutory application. On 05.01.2023, after considering the submissions made by the learned counsel on both sides, this Court directed both parties to be personally present in Court today, at 10.15 a.m, along with the minor child.

3. Today, when this matter is taken up for consideration, the petitioner is personally present in Court. Adv.S.Noushad, the learned counsel for the respondent would submit that since the minor child is not keeping well, the Power of Attorney holder of the respondent and also the minor child are not present in Court. The learned counsel has made available for the perusal of this Court a casualty ticket issued from Taluk Hospital, Kayamkulam with O.P No.150362.

4. After referring to the observations made by the Vacation Bench in the order dated 30.12.2022, the learned counsel for the petitioner would submit that the attempt of the Power of Attorney holder of the respondent, namely, the maternal grandfather of the minor child, is only to deny interim custody of the minor child to the petitioner - father, before he leaves for UAE.

5. Having considered the submissions made at the Bar, we deem it appropriate to direct the Station House Officer, Kariyilakkulangara Police Station in Alleppey District to depute a Women Police Officer (not in uniform) to the residence of the respondent at Keerikkad to interact with the minor child and record a statement, who shall submit a report before this Court through the learned Senior Government Pleader. The Station House Officer shall depute another Police Officer to Taluk Hospital, Kayamkulam, who shall submit a report before this Court through the learned Senior Government Pleader, after verifying the medical records, if any, relating to OP ticket No.150362 dated 30.12.2022. The reports of the concerned officers shall be placed on record by 12.00 p.m. today itself.

7. On 06.01.2023 at 02:00 p.m., this Court passed another order, which reads thus;

The petitioner is the father of male child 'Salmanul Farisi', aged 11 years. O.P.(G&W) No.1190 of 2019 was filed by the respondent-mother before the Family Court, Mavelikkara seeking custody of the child. That O.P. was allowed as per the order dated 12.07.2020. The petitioner herein was exparte. Later, he filed I.A.Nos.501 of 2022 and 502 of 2022 seeking to set aside the said exparte order, after condoning the delay of 173 days. He also filed I.A.No.2 of 2022 before the Family Court seeking an order granting him interim custody of the child during the Christmas holidays. The petitioner complaining that there occurs delay in considering the said application approached this Court by filing this Original Petition under Article 227 of the Constitution of India.

2. As per order dated 27.12.2022 the Power of Attorney holder of the respondent was directed to produce the child before this Court on 30.12.2022. The petitioner was directed to be present on that date. Both of them physically appeared before this Court along with the child on 30.12.2022. After interacting with them, this Court directed the Power of Attorney of the respondent to give the child in the custody of the petitioner-father from 4.00 p.m. on 30.12.2022 till 9.00 a.m. on 01.01.2023. The Power of Attorney holder of the respondent was directed to hand over the child at 4.00 p.m. from the premises of the Magistrate Court and drop the child back at 10.00 a.m. on 01.01.2023 at the house of the Power of Attorney holder of the respondent, who is the maternal grandfather. 3. Alleging that the maternal grandfather did not comply with the said order, the petitioner filed I.A.No.1 of 2023 before this Court seeking a direction to the respondent to comply with the said direction and handover custody of the child on a subsequent date. This Court directed the grandfather to produce the child before this Court today at 10.15 a.m. But the child is not produced. The petitioner appeared before this Court in person.

4. The learned counsel appearing for the respondent submitted that the child was not keeping well. Taking note of the fact that the grandfather did not oblige the order dated 30.12.2022 and also the order dated 05.01.2023 to produce the child today before this Court, we directed the Station House Officer, Kariyilakkulangara Police Station in Alappuzha District to depute a Women Police Officer (not in uniform) to the residence of the respondent at Keerikkad to interact with the minor child and record a statement, and to submit a report before this Court through the learned Senior Government Pleader. The Station House Officer was directed further to depute another Police Officer to Taluk Hospital, Kayamkulam, who shall submit a report before this Court through the learned Senior Government Pleader, after verifying the medical records, if any, relating to O.P.Ticket No.150362 dated 30.12.2022.

5. Accordingly, a report was made available for the perusal of this Court at 2.00 p.m. From the statement of the child recorded by the Woman Civil Police Officer, Smt.Annie, we noticed that the child has some physical infirmity. Considering the physical condition of the child, we are of the view that it is not expedient to direct production of the child before this Court. However, on taking note of the fact that the father has to leave for U.A.E. on 10.01.2023 and there is already a direction by this Court to hand over custody of the child for a day to the petitioner, we deem it appropriate to direct the grandfather to produce the child before the Family Court, Mavelikkara on 09.01.2023 at 11.00 a.m. The Family Court will interact with the child and take a decision on the same day in I.A.No.2 of 2022 in O.P.(G&W) No.1190 of 2019, pending before that court.

8. Heard the learned counsel for the petitioner and also the learned counsel for the respondent.

9. The learned counsel for the petitioner would submit that, in terms of the directions contained in the order dated 06.01.2023, the minor child was produced before the Family Court, Mavelikkara on 09.01.2023. The Family Court passed an order after interacting with the minor child, whereby the petitioner-father was permitted to have interaction with the minor child till 02:00 p.m. on 09.01.2023 and thereafter till 03:00 p.m. The Family Court ordered further interaction with the minor child on 10.01.2023. However, that opportunity could not be availed since the paternal grandmother, who is suffering from cancer (3rd stage) could not undertake travel from her residence, Mavelikkara for seeing the grandchild. The learned counsel for the petitioner-father would submit that the father has already returned to UAE, in connection with his employment.

10. During the course of arguments, the learned counsel for the respondent could not offer any satisfactory explanation for his conduct in not accepting notice in I.A.Nos.1 and 2 of 2023, which necessitated the issuance of fresh notice by special messenger to the respondent-mother by the order dated 03.01.2023. We have also perused the report of the Sub Inspector of Police, Kariyilakkulangara Police Station dated 06.01.2023 and also the statement recorded by a woman police officer. The said report and statement would indicate that the minor child was given an impression either by the respondent-mother or maternal grandfather that the petitioner-father intends to take the minor child abroad. Such a conduct on the part of the mother or maternal grandfather of the minor child, with an intention to deny visitation right to the petitioner-father and his mother, who is suffering from cancer, has to be deprecated in the strongest words and we do so.

11. In Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67] [LQ/SC/2020/83] 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.

12. In Yashita Sahu (supra) 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.

13. In Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476 [LQ/SC/2022/46 ;] ] 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. Such orders are not passed only for protecting the rights of the parents. In view of the settled legal position, the welfare of the minor being the paramount consideration, the court cannot act upon the suggestions of Mr. John Ekelaar in his Article. The court cannot accept the submission that, while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents”

14. The decision in Vasudha Sethi (supra) was not regarding a post-decree scenario. But when interim custody of a child is the question, the same principle applies equally to the post-decree stage also. In view of the principles laid down in Yashita Sahu and Vasudha Sethi referred to supra, we are of the view that the wish of the child has to be taken into account before ordering interim custody of the child.

15. In the light of the law laid down in the decisions referred to supra, the conduct on the part of the respondent herein-mother or maternal grandfather of the minor child, with an intention to deny visitation right to the petitioner-father and his mother, who is suffering from cancer, cannot be viewed lightly. As held by the Apex Court in Yashita Sahu (supra), even if 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 loss social, physical and psychological contact with anyone of the parents. The Family Court while considering an application for interim custody has to keep in mind the principles laid down by the Apex Court in the aforesaid decision.

16. With the above observations, this original petition is disposed of by directing the Family Court to consider and pass appropriate orders in I.A.Nos.501 and 502 of 2022 (R.P.No.12 of 2022) in O.P(G&W) No.1190 of 2019, within a period of two months from the date of production of a certified copy of this judgment.