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Kerala High Court

Against The Judgment In ... vs Biji on 6 February, 2016

IN THE HIGH COURT OF KERALAAT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937

Mat.Appeal.No. 234 of 2016 ()

------------------------------

AGAINST THE JUDGMENT IN O.P.(GUARDIAN) 1293/2012 of FAMILY COURT,

IRINJALAKUDA
DATED 06-02-2016.

APPELLANT(S)/PETITIONERS:
------------------------------------------

1. BIJI, AGED 26 YEARS,

D/O.BABU, THUDIYATH HOUSE,
KADUPPASSERY DESOM, AVITTATHUR P.O.,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

2. ANUSHKA, AGED 11 MONTHS,

REP. BY HER MOTHER BIJI, DO. DO.

BY ADVS.SRI.G.SREEKUMAR (CHELUR)
SRI.N.L.BITTO

RESPONDENT(S)/RESPONDENTS:
------------------------------------------------

1. VIJIL (DIED), AGED 35,

S/O.VARGHESE, PULIKKOTTIL, MAMMAYIPARAMBIL HOUSE,
OORAKAM DESAM, PULLUR P.O., MUKUNDAPURAM TALUK
THRISSUR DISTRICT -680 001.

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2. VARGHESE, AGED 62 YEARS,

S/O.JOSEPH KUNJIPPU,
PULIKKOTTIL MAMMAAYIPARAMBIL HOUSE, OORAKAM DESAM,
PULLUR P.O., MUKUNDAPURAM TALUK,
THRISSUR DISTRICT - 680 001.

3. MEGI, AGED 52 YEARS,

W/O. VARGHESE,
PULIKKOTTIL MAMMYIPARAMBIL HOUSE, OORAKAM DESAM,
PULLUR P.O., MUKUNDAPURAM TALUK,
THRISSUR DISTRICT - 680 001.

R2 & R3 BY ADVS. SMT.P.R.REENA AND SURYA BINOY FOR CAVEATORS

THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON

03-03-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.T.O.

C.R.

C.K. ABDUL REHIM

&
SHAJI P. CHALY, JJ.
--------------------------------------------------
Mat. Appeal No.234 of 2016
-----------------------------------------------
Dated this the 3rd day of March, 2016

JUDGMENT

Shaji P. Chaly, J.

This appeal is preferred by the respondent/wife against the judgment in G.O.P No.1293 of 2012 of the
Family Court, Irinjalakuda, dated 06.02.2016. By the impugned judgment the Family Court has
declined permanent custody of the minor child to 2nd and 3rd respondents who are the parents of the
1st respondent husband, but granted visitation rights. It is challenging the visitation rights permitted to
respondents 2 and 3, this appeal is preferred. The 1st respondent husband is no more.

2. Brief facts required for the disposal of the appeal are that; the 1st respondent has filed the Original
Petition seeking an order of permanent custody of the minor child, Anushka, aged 3 years. When the
trial was in progress, the 1st respondent died in a motor accident and thereupon the 2nd and 3rd
respondents herein, who are his parents, were impleaded as additional petitioners and the trial
continued with them in the array of petitioners. The child was only 11 months old when the Original
Petition was filed. The Original Petition was filed before the Family Court, Thrissur. Subsequently,
consequent to the establishment of Family Court, Irinjalakuda the same was transferred to the said
Court and re-numbered.

3. Contentions raised by the 1st respondent seeking permanent custody of the minor child are that,
marriage between the 1st respondent and the appellant was solemnized as per Christian religious rites
on 17.01.2010. A girl child was born in the wedlock on 13.03.2011, later named Anushka. That the
appellant belongs to a poor family and that she had received only 15 sovereigns of gold ornaments as
gift from her parents. When the baptism of the child was conducted, 7 sovereigns of gold ornaments
were given to the child by his family members and the entire gold are under the exclusive possession
and enjoyment of the appellant, that the appellant filed an Original Petition before the Family Court,

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Thrissur alleging that 1st respondent and his parents had misused her ornaments. Appellant had also
filed M.C.No.159 of 2011 before J.F.C.M Court, Irinjalakuda, seeking maintenance and accordingly
an amount of Rs.3,000/- each was ordered as maintenance to the appellant and the minor child. There
was yet another case instituted at the behest of the appellant against the 1st respondent alleging offence
punishable under Sec.498(A) of the Indian Penal Code. It is also contended that 1st respondent was
continuously paying maintenance to the appellant and the minor child. That appellant left the
matrimonial home with the minor child without any sufficient cause. The child needs love and
affection of the 1st respondent. Access to the child was denied to the 1st respondent and that appellant
was not caring the minor child. It is also contended that the 1st respondent has sufficient financial and
other background to look after the child. Since the 1st respondent being the natural guardian of the
minor child, he is legally entitled to be declared so. Even though the 1st respondent went to the house
of the appellant with Christmas presents and sweets during December, 2011, he was not even permitted
to see the child and the articles were thrown away. It is also contended that the neighbours are all
witnesses to the said incident.

4. Yet another contention advanced by the 1st respondent is that, on 02.08.2011 the child fell ill and the
1st respondent advised the appellant to bring the child to hospital for treatment, but she has not cared
to do so. Consequent to which, the illness of the child became worse and thereupon the 1st and 3rd
respondents took the child to the hospital for treatment. It is also contended that on account of that
vengeance, appellant picked up quarrel with the 1st respondent and left the matrimonial home along
with minor child. Though 1st respondent had made his earnest efforts to bring back the appellant and
the child, due to the adamant stand adopted by the appellant the same did not fructify. Therefore, the
1st respondent seeks permanent custody of the child for the welfare and protection of the minor.

5. Appellant had filed counter affidavit refuting the allegations with respect to the custody of the child
and other aspects. That apart, it is alleged that the 1st respondent was in the habit of using drugs and
alcohol, which led to disharmony, marital discord and disputes between the appellant and the 1st
respondent. It is also contended that the appellant had received 25 sovereigns of gold ornaments which
were misused by the 1st respondent, who was leading an indisciplined life. That apart, he further
demanded an amount of Rs.1 lakh and infuriated by the refusal to comply with the demand, the 1st
respondent had driven away the appellant from the matrimonial home. It is contended by the appellant
that, the child being a girl and of very tender age, she needs inseparable company of the appellant. That
the 1st respondent had neglected to maintain herself and the child and it was under that circumstances
she was compelled to file appropriate application before the Magistrate Court seeking maintenance for
herself and the child. It is also contended that, the 1st respondent was not at all prompt in paying the
maintenance ordered by the Magistrate Court. According to the appellant, providing custody of the
minor to the 1st respondent is not at all safe. That apart, it is contended that, she has the capacity and
ability to take necessary protection and care of the child and therefore prayed that permanent custody
sought for by the 1st respondent shall not granted.

6. As observed above, during pendency of the proceedings before the court below, the 1st respondent
died and consequent to which respondents 2 and 3 were impleaded as additional petitioners 2 and 3.
After appreciating the rival contentions, the court below has framed two main points for consideration:

(1) Whether grand-parents are entitled to get permanent custody of their minor grand
daughter from respondent/daughter-in-law?

(2) Who will be the proper custodian of the minor child?

7. The 1st respondent was examined as PW1 and the 2nd respondent was examined as PW2. No
documents were marked on their side. Appellant herein was examined as RW1 and Exts.B1 to B3 were
marked on her side. After assimilating the factual and legal situation, the Family Court has arrived at a
conclusion that, taking into account the age and sex of the minor child, the child needs inseparable
company of her mother. As the natural guardian of the child is no more, the respondent mother is
eligible to be declared as the natural guardian of minor child. However the Family Court held that, the
other prayers of the additional petitioners/respondents 2 and 3 for interim custody can be considered.
The appellant objected the prayer of the respondents 2 and 3 for interim custody of the minor child,
contending that such a request is not legally entertainable and also on the ground that they have not

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placed any corroborative documentary evidence to establish that they are financially sound enough to
provide better education to the minor child. The Family Court has found that the appellant and her
family members can provide better educational standards to the minor child and therefore continuance
of custody of child with the appellant will protect the welfare of the child. But at the same time the
Family Court has found that, the appellant has been doing a job in a private company and she will not
be present in the house from 10 a.m. to 3.30 p.m.

8. In accordance with the findings rendered by the Family Court, visitation rights was granted to
respondents 2 and 3 on every alternative 3rd Saturdays from 9 a.m., till 9 a.m. of the succeeding
Sundays. Apart from the same, 3 days interim custody was granted during 'Onam' and 'Christmas'
holidays and 10 days during mid-summer vacation. Further the respondents 2 and 3 were provided
with custody of the child on the death anniversary date of the 1st respondent and also on the 3rd
Sundays after Easter, in connection with the festival of their Parish Church. Even while granting the
said interim custody, a rider was added to the effect that they are entitled to get such interim custody
only if they bear the entire educational expenses of child. Apart from that, other directions are also
issued with regard to the handing over custody of the child. It is further held that the arrangement will
continue till the child attains the age of 8 years. It is aggrieved by the said visitation rights granted to
respondents 1 and 2, this appeal is preferred.

9. Heard learned counsel for the petitioner and learned counsel for respondents 2 and 3.

10. Main contentions advanced by learned counsel for the appellant are that, the respondents 2 and 3,
who are the grandparents are entitled only for a visitation right and they are not entitled to get interim
overnight custody of the child, as ordered by the Family Court. That the order of the Family Court
providing temporary custody to the grandparents is illegal and arbitrary, especially when there are no
justifiable circumstances put forth by the respondents 2 and 3, in evidence before the Family Court to
establish their claim for interim custody. It is also contended that the Family Court did not considered
the locus standi of the respondents 2 and 3 to seek custody of the child since they are not legal
guardians. It is also contended that if respondents 2 and 3 wanted custody of the child, they ought to
have filed separate application before the Family Court. That apart, it is also contended that, the Family
Court had failed to take note of the attitude of respondents 2 and 3, that they do not want to spent any
money for meeting the expenses of the child. But they are only interested in taking custody of the
child, which attitude is not conducive to the wellbeing and welfare of the child. It is also contended by
learned counsel for the appellant that, by allowing respondents 2 and 3 to get impleaded in the
proceedings instituted by the 1st respondent and by allowing the amendment in the Original Petition,
the nature and character of the Original Petition was materially and substantially changed, which alone
is enough to non-suit the respondents under law. It is thus contended that the respondents are entitled
only for a right to visit the child and not for any overnight or interim custody.

11. On the other hand, learned counsel for respondents 2 and 3 contended that, since their son is no
more, they are entitled to have at least the interim custody of the child and to express their love and
affection to the child, which will be conducive to the health, welfare, wellbeing and growth of the
child. It is also contended that there is no prohibition under the Guardian and Wards Act enabling the
grandparents to have interim custody of the child for temporary and short periods. It is also contended
by the learned counsel that, visitation rights and interim custody include overnight custody and custody
for temporary and short periods. It is further contended that, as per the traditions, custom and culture
prevailing in the society, the child is entitled to enjoy its childhood along with grandparents and other
close relatives of the 1st respondent. It is also contended that the family traditions prevailing had
proved that the children develop disciplined life by interacting and mingling with the grandparents,
immediate relatives and elders of the family of the husband also. Therefore it is contended that, the
interim and overnight custody provided by the Family Court for short periods is in accordance with
law and there is no illegality, impropriety, incorrectness or gross injustice in the order passed by the
Family Court, warranting interference of this Court in the appellate jurisdiction.

12. On an appreciation of the rival contentions, the main point that arises for consideration is as to
whether the Family Court is vested with powers to provide overnight custody while granting visitation
rights, even for short periods. Learned counsel for the appellant contended that the 'visitation rights'

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takes in only a visit to the child, which will not include overnight custody for any periods. According
to the counsel, the term 'visit' means just a visit to the child and not the child visiting the grandparents
at their house. In this regard a reference to the dictionary meaning would be beneficial, since the terms
'visit' or 'visitation' are not defined under the Guardian and Wards Act. The 'Chambers Concise
Dictionary Deluxe Edition' defines the word "visit" as to pay a call upon; to go to for sightseeing; to go
to stay with; to make a stay; to be in the habit of seeing or meeting each other at home; a short stay etc.
etc. The 'Black's Law Dictionary' provides different concepts to the term "visitation" and has
recognized various kinds of visitation rights such as (i) visitation; (ii) grandparent visitation; (iii)
restricted visitation; (iv) stepped- up visitation; and (v) supervised visitation. The word 'visitation' is
defined there with specific reference to Family Law, to a non-custodial parents period of access to
child and also termed as 'parental access' and further defined as 'parenting time', residential time. A
grandparent's visitation is defined as a grandparent's court approved access to a grandchild, 'restricted
and supervised visitation' are defined as visitation under the orders of court in which a parent may visit
the child or children only in the presence of some other individual and that a court may order
supervised visitation when the visiting parent is known or believed to be prone to physical abuse,
sexual abuse or violence, 'stepped-up visitation' means a visitation under the orders of a court for a
parent who has been absent from child's life, that begins on a very limited basis and increases as the
child comes to know the parent. Therefore, in legal parlance the grandparents' visitation of the child is
well-recognized and the same takes in overnight custody also for short periods.

13. That apart, as contended by learned counsel for the respondents, as per our traditions and culture
the children are allowed to live with their grandparents, immediate elder members of the family and
relatives during festival seasons and other holidays. The children are also allowed to attend family
functions, festivals conducted in religious institutions etc. in the maternal as well as paternal houses, in
order to understand the cultural and traditional backgrounds that are prevailing in the family and
community, irrespective of religious and cultural differences. This is done with the prime intention of
bringing up the child as a social being and with the objective and intention of making them responsible
citizens to yield fruitful results to the family, society and the nation at large. It is also common and
well-settled that the children may reside in the maternal and paternal houses along with grandparents,
whenever such occasion demands. This will help the children to have larger perspective and broader
minds which are also necessary for their welfare and wellbeing. It is also well settled that the children
learn many things from their grandparents and they hear many stories which are termed as 'grandpa's
and grandma's stories'. The grandparents also enjoy company of the children in their old age which will
be helpful to their old age life and the same has many dimensions and significance, correspondingly.
The courts while considering custody of children/visitation sought for by grandparents, should bear in
mind such realities, while reckoning the circumstances conducive to the welfare of the child.
Therefore, we have no hesitation to hold that a visitation right or temporary custody can include
overnight custody for short periods also.

14. Learned counsel for the appellant has invited our attention to a Division Bench judgment of this
Court in 'Sobhana Nair K.N. v. Shaji S.G. Nair' [2016 (1) KHC 1 (DB)] to canvass the proposition that
the grandparents are not entitled to insist for overnight custody. But in our view, the said decision has
no bearing or application to the contentions advanced by the appellant, because the questions
considered therein was, whether due to death of mother the maternal grandmother is entitled to seek
custody of children irrespective of the wellbeing and welfare of the minor children and whether the
grandmother has any absolute legal right to insist that the minors should be brought to court premises
in order to have visitation rights. The said judgment did not deal with the question of the nature of
visitation rights at all. 15.

15. Learned counsel for the appellant even though vehemently argued that the Guardian and Wards Act
does not recognize an overnight custody of children to the grandparents, he could not point out any
specific provision under the Act to sustain the said contention. On the other hand, the Act enables and
recognises the right of others on securing permission from court.

16. Yet another judgment cited by the learned counsel is that of the High Court of Punjab and Haryana
in 'Sh. Gian Chand Gupta & Anr. v. Mrs. Nittu & Anr.' [2011(4) Law Herald (P&H) 3410], to canvass
the proposition that, if custody of the children is granted to the grandparents the same can cause much

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confusion and furthering disputes between the living spouse and the grandparents. With due respect,
we are unable to agree with the findings therein, considering the traditional, social and cultural
perspectives prevailing in the communal life in our society.

17. Yet another contention advanced by the learned counsel is that, if the respondents 2 and 3 wanted
custody of the child they ought to have filed separate application. We are also of the considered
opinion that in order to seek permanent custody of the child, the respondents 2 and 3 are bound to file
separate Original Petition claiming custody of the child and also to bring to the notice of the court their
capacity and ability to bring up the child on account of the inability and incapacity of the mother to
rear and bring up the child. However, since the Family Court had refused to grant permanent custody
to the intervener grandparents, and granted only the visitation rights, the said contention has no legal
sustenance and it is too hyper technical an argument. Even though in the impugned judgment there is
no mention about amendment of the Original Petition consequent to impleading of respondents 2 and
3, from the Appeal Memorandum we find that the Original Petition was amended and the respondents
2 and 3 were arrayed as additional petitioners 2 and 3 in the Original Petition to suit their claim. By
taking into account of the said aspect, we are of the considered opinion that respondents 2 and 3 cannot
be non-suited by raising such a technical contention also.

18. However, we find that the minor girl child was aged only 11 months at the time of filing the
application in the year 2012 and at present the child is only at the most 4 years old. Therefore we are of
the considered opinion that, if the custody of the child is handed over to respondents 2 and 3 all on a
sudden, without there being any acquaintance and intimacy built up with the grandparents, it may not
be conducive for the child to be in their custody and to spend time at the house of the respondents 2
and 3, that too on an overnight basis. Creating such a situation may not be within the interest, welfare
and well being of the minor child. Therefore, we feel that overnight custody of the child can be stepped
up in a slow pace and the day time custody of the child can be increased in a phased manner, which
will enable the child to have more familiarity and acquaintance, and will enable the child to develop
love, affection and intimacy with the grandparents. We are conscious that, in an appeal filed
challenging the grant of visitation rights, we are proposing to make radical changes. But the 'parens
patriae' jurisdiction conferred on courts enable us to do so. In that view of the matter, we modify the
order of the Family Court in the following manner:

(a) The 2nd and 3rd respondents are entitled to have day time custody of the child on the first and third
Saturdays of every month from 10 a.m. to 3 p.m. The custody shall be handed over and returned back
at the premises of the Family Court. The respondents 2 & 3 will be free to take the child outside the
premises of the court, but within the limits of Irinjalakuda city.

(b) The respondents 2 & 3 will be entitled to have day time custody of the child on the date of the
death anniversary of the 1st respondent, and also on the 3rd Sunday after the Easter in connection with
the festival of the parish church.

(c) The respondents 2 & 3 will be entitled to get interim overnight custody of the child for 2 days
during the first half of Onam holidays and 3 days during second half of Christmas holidays from the
year 2016 onwards. They are also entitled to overnight custody of the child for 7 days during first half
of mid summer vacation from 2017 onwards.

19. The above said arrangements will continue for a period of two years and thereafter respondents 2
and 3 are entitled to take custody of the child on every 1st and 3rd Saturdays from 9 a.m. to 11 a.m. of
the succeeding Sundays. Likewise, they are also entitled to get overnight custody of the child for a
period of 5 days each during Onam and Christmas holidays and 15 days during first half of the mid-
summer vacation, apart from the death anniversary date and 3rd Sundays after Easter provided above.
The said arrangements will continue till the child attains the age of 8 years as directed by the Family
Court. Arrangements with regard to the handing over of the child and resumption of custody, and other
directions issued by the court below are sustained.

Resultantly, the above Matrimonial Appeal is disposed of with the directions contained above.

Sd/-

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C.K. ABDUL REHIM JUDGE Sd/-

SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-

04.03.2016 The words "within the limits of Irinjalakuda city" occurring in paragraph 18(a) of the
judgment dated 03.03.2016 in Mat. Appeal No.234/2016 are substituted by the words "within the limits
of Family Court, Irinjalakuda", vide order dated 06.04.2016 in I.A.No.1321/2016 in Mat. Appeal
No.234/2016.

Sd/-

Registrar (Judicial).

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