IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940
Mat.Appeal.No. 1161 of 2017
AGAINST THE ORDER/JUDGMENT IN OPGW 1309/2014 of FAMILY COURT,
MAVELIKKARA DATED 26-05-2017
APPELLANT/PETITIONER:
DIVYA SUSAN THOMAS @ DIVYA SUSAN MANOJ
AGED 32 YEARS, D/O. ALEYAMMA THOMAS, T.D.BHAVAN,
VETRIPURAM EAST, MYLAPRA P.O., WARD NO. 12, HOUSE NO.
311, PATHANAMTHITTA, KOZHENCHERY TALUK – 689 671.
BY ADV. SMT.S.KARTHIKA
RESPONDENT/RESPONDENT:
MANOJ VARGHESE
AGED 36 YEARS, S/O. T.K. VARGHESE, MUTTATHETHU VINCY
VILLA, KODUKULANJI P.O., KODUKULANJI MURI, ALA
VILLAGE, CHENGANNUR TALUK-689508
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.)
SRI.JAISON JOSEPH
SRI.N.RAGHURAJ
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON,18.1.2019 THE
COURT ON 15.03.2019 DELIVERED THE FOLLOWING:
Mat. Appeal No. 1161/2017 2
C.K.ABDUL REHIM
T.V.ANILKUMAR, JJ.
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Mat Appeal No.1161 of 2017
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Dated this the 15th day of March 2019
JUDGMENT
T.V.ANILKUMAR, J.
Appellant, the mother of two minor wards, ‘Eva Mary Manoj’ and
‘Leah Susan Manoj’, having lost her claim for permanent custody of
the children in O.P.(GW) No.1309/2014 before Family Court,
Mavelikkara, has come up in appeal challenging dismissal of the
Original Petition filed by her father, restricting her right to the limited
extent of custody of children only during the annual school vacation.
2. Appellant was married to the respondent on 9.1.2018. After
the marriage she joined the respondent in Dubai, where he was
employed. Both lived together in the matrimonial home at Dubai
along with the respondent’s parents. ‘Eva Mary Manoj’ and ‘Leah
Susan Manoj’ were born respectively on 13.12.2009 and 1.7.2010.
She lived with the children, the respondent and his parents only till
3.5.2014, when she left for her parental house in Pathanamthitta. The
children were admitted in the Indian High School, Dubai and they
Mat. Appeal No. 1161/2017 3
continued study in the said school until they were shifted to the
school at Pathanamthitta under interim orders issued by this court
during the pendency of the above appeal.
3. Her case is that, ever since she started matrimonial life with
the respondent, he treated her with cruelty. He is an alcoholic and
used to take narcotic drugs almost on all days. He refused to
develop any love and affection towards her or to the children and
failed to discharge the duties of a husband-cum-father. Ultimately, in
order to save herself from the continued harassment, she left for
Kozhenchery, her native place in the district of Pathanamthitta. Since
the children were continuing education at that time in Dubai, she was
compelled to part with the minor children and after joining her parents
and relatives in Kozhenchery, she filed O.P.No.612/2014 before the
Family Court, Pathanamthitta seeking to recover her gold ornaments
and assets, allegedly misappropriated by the respondent and his
parents. She hoped to see her children in the Family Court,
Pathanamthitta during the counseling sessions, which however did
not materialised. She was, therefore, constrained to file this Original
Petition on 26.12.2014 and she secured an order of interim custody
of minor wards from the respondent directing their production on
Mat. Appeal No. 1161/2017 4
29.12.2014 before the Family Court, Pathanamthitta. But the
respondent, contravening the order of the court, removed the children
to Dubai on 30.12.2014. She continues to allege that the wards being
growing girl children, they are badly in need of her company, love
and affection. According to her, for the development and growth of
the children, mother’s company is quite inevitable. The respondent
being a person leading adulterous life, custody of children with him
may not be conducive. Appellant claimed to have sufficient means to
maintain the children and to impart better education in her native
place in Pathanamthitta. Enumerating the aforesaid contentions in
the Original Petition, the appellant sought a decree for permanent
custody of the minor wards.
4. The respondent in his counter statement denied the allegation
that he was immoral and alcoholic. He also denied the allegation that
he removed the children to Dubai after flouting the order of the Family
Court, Mavelikkara. He stated that the children were taken out of India
only with the consent of the Family Court, Pathanamthitta. According
to him, the appellant is a mentally ill person and further, she has been
suffering from a disease called ‘exima’. She has always been
unstable in her behaviour to the wards as well as to himself. She is
Mat. Appeal No. 1161/2017 5
not capable of taking care of the affairs of the children and has
willfully abstained from attending the kitchen work. Her parents in the
native place are not capable of imparting proper education to the
children, since they too have no sufficient means to spend for
education of the children. Father of the appellant is also mentally an
ill person, who is confined to the four walls of the house. Her mother
is a part time LIC agent incapable of drawing any substantial income
to give financial support to her family. There are no better schools
also anywhere in her home place. In pith and substance, the
respondent’s contention is that, granting permanent custody of the
wards to the appellant, would be prejudicial to the interest and
welfare of the children.
5. The court below examined the question as to whether
appellant was entitled to permanent custody of the minors on the
basis of the oral and documentary evidence brought before it.
Exts.A1 to A17 were marked on the side of the appellant. Herself and
a close relative of her were examined as PWs 1 and 2, respectively.
No oral evidence was tendered on the side of the respondent. He
produced Exts.B1 to B8.
6. The Family Court found that, the two minor wards started
Mat. Appeal No. 1161/2017 6
their early education abroad and continued their studies in the Indian
High School, Dubai and all throughout they comfortably stayed in the
company of respondent and his parents, even after appellant’s
departure from Dubai on 3.5.2014. After finding that appellant left
Dubai without the consent of respondent and her in-laws, it was held
that, continued stay of the children along with the respondent would
be better for their welfare. It was held that there was nothing on
record to show that the respondent was disqualified from continuing
with the custody of the minors. The appellant was found to have
sufficiency of means to maintain and also capacity to educate the
wards. The court below found that the appellant failed to prove that
she had sufficient means to maintain the daughters at her native
place. While declining the claim for permanent custody, the court
below allowed her the limited right to hold custody of the wards for 30
days during their annual school vacation in Dubai.
7. Challenge directed against the impugned judgment of the
lower court is that, the evidence on record proving her right to
custody of the children was not properly weighed or appreciated. It is
contended that, for all round development and growth of the two
children, their stay with the mother, especially during their teen age,
Mat. Appeal No. 1161/2017 7
is a must. It is also one of the contentions that the respondent has no
means and he has a very weak moral side. He used to drink, take
drugs and lead adulterous and wayward life. It was also argued that
the respondent is a person who contravened the order of the Family
Court, Mavelikkara directing for production of the children and had
shifted the children to Dubai when the order for interim custody
continued to be in force.
8. The sole point that arises for consideration and decision is
whether the entrustment of the minor wards in permanent custody of
the appellant will be in the interest and welfare of the children.
9. We heard counsel appearing on both sides.
10. Certain facts are not in dispute between the parties. After
the marriage the spouses started living in the matrimonial house at
Dubai where the respondent was employed. The parents of the
respondent were the other inmates of the matrimonial home. The
minor wards ‘Eva Mary Manoj’ and ‘Leah Susan Manoj’ were born
on 13.12.2009 and 1.7.2010, respectively. The appellant left
company of the respondent and the children on 3.5.2014 and till then
she resided with the respondent, his parents and the minor wards at
the matrimonial house in Dubai. While she left the respondent owing
Mat. Appeal No. 1161/2017 8
to the alleged acts of cruelty on her, the children continued their study
in the Indian High school, Dubai. The appellant was not having any
sort of employment nor was an earning member during her stay in
Dubai.
11. Learned Judge of the Family Court, Mavelikkara, while
appreciating the facts, circumstances and evidence, found that, it was
not expedient to give permanent custody of the wards to the appellant
since it would only upset the educational prospects of the children.
Further, the learned Judge did not find any reason which could
disqualify the respondent from having custody of the wards.
Allegations imputing immoral character on the respondent were
disbelieved by the learned Judge. In the matter of financial status
also, it was found that the respondent has adequate means to take
care of the children and to educate them in the school where they
were already undergoing their education.
12. What matters and is significant in cases of this nature,
where there are rival claims for custody between the natural parents
is, the question as to whether the custody of the wards claimed by
the petitioner/parent will be in the interest and welfare of the wards.
The ultimate decision of the court has to flow from the totality of the
Mat. Appeal No. 1161/2017 9
circumstances that determine the welfare of the children, than from
the mere inter-se rights and claims of the natural guardians for
custody. A case involving dispute on rival claims for custody of minor
wards cannot be decided like a case involving rival claims as to
property or assets of the spouses. The welfare, growth and
development of the children are the predominant factors which the
Family Court has to be cognizant of while choosing the fit person
among the contesting guardians. No hard and fast principle could be
laid in this respect for identifying the circumstances which vouch for
the interest and welfare of the child. All that depends on the individual
facts and circumstances of each case.
13. Under Section 17 of the Guardians and Wards Act 1890, in
considering the welfare of the minor, the court shall have due regard
to the age, sex of the minor as well as the character and capacity of
the proposed guardian. The intelligent preference of the minor, if it is
old enough, to form such opinion, is also one of the considerations on
which welfare of the child is determined. In Nil Ratan Kundu
another Vs. Abhijit Kundu [(2008) 9 SCC 413], the Hon’ble
Supreme Court laid down the law in this respect as follows:
Mat. Appeal No. 1161/2017 10
“52. In our judgment, the law relating to custody of a child is fairly well
settled and it is this: in deciding a difficult and complex question as to
the custody of a minor, a court of law should keep in mind the relevant
statutes and the rights flowing therefrom. But such cases cannot be
decided solely by interpreting legal provisions. It is a human problem
and is required to be solved with human touch. A court while dealing
with custody cases, is neither bound by statutes nor by strict rules of
evidence or procedure nor by precedents. In selecting proper guardian
of a minor, the paramount consideration should be the welfare and well-
being of the child. In selecting a guardian, the court is exercising parens
patriae jurisdiction and is expected, nay bound, to give due weight to a
child’s ordinary comfort, contentment, health, education, intellectual
development and favourable surroundings. But over and above physical
comforts, moral and ethical values cannot be ignored. They are equally,
or we may say, even more important, essential and indispensable
considerations. If the minor is old enough to form an intelligent
preference or judgment, the court must consider such preference as
well, though the final decision should rest with the court as to what isconductive to the welfare of the minor.”
14. There are mutual allegations as against each of the parents
that he or she is not qualified to seek permanent custody of the
wards. The two wards, who are girl children had now attained the
age of 9 and 8 years, respectively. Right from the beginning, the
appellant’s allegation against the respondent is that he is an alcoholic
and is also habituated to taking drugs regularly. He used to come
late in the night and showed no interest in the affairs of the children.
He did not show any kind of fatherly affection also to the wards. He
Mat. Appeal No. 1161/2017 11
was also imputed with immoral character of leading adulterous life
with ladies of his choice in many places.
15. Except appellant’s testimony alleging immoral character on
the respondent, there is nothing on record to corroborate her. PW2,
a close relative of her has no direct knowledge about the truth of the
allegations made by the appellant. PW1, the appellant, was cross-
examined by the respondent denying all these allegations even
though he did not choose to enter the box to deny the allegations
against him. On re-appreciating the oral evidence on record, we are
not convinced that the appellant could establish any of her allegations
imputing immoral character on the respondent. She was not able to
specify the name or identity of any woman with whom he had the
alleged adulterous relationship. Like wise, except a general and bald
allegation that he used to take drugs and come home late after being
drunk, no specific incident in which he behaved immorally or tortured
the wife and children, could be testified by her. Allegations charging
immorality are not matters for mere speculation, but are liable to be
proved by convincing evidence.
16. Respondent too has an allegation that the appellant is not
mentally stable. She, because of her mental instability, is rendered
Mat. Appeal No. 1161/2017 12
incapable of attending even routine domestic affairs and taking care of
the children, are the allegations. According to him, her father is also
mentally unstable. There is nothing on record to show that appellant
has any sort of mental disorder and for that reason, she was not
capable of taking care of the children. The respondent failed to
establish that the appellant was disqualified from claiming permanent
custody of the children on account of alleged mental disorder. No
oral evidence was adduced by the respondent to prove his allegations
in this respect.
17. One of the factors which disqualifies the respondent,
according to the appellant, is that he has no independent means to
maintain the children. She said that admission of the second child
Leah Susan Manoj to school was willfully delayed by the respondent.
So also, the first child Eva Mary Manoj was not paid school fees in
time and there were many instances when late fees were imposed.
In our opinion, these allegations do not merit any acceptance
because the evidence on record proves that when the appellant left
the company of the respondent, both the children continued their
studies in the Indian High School, Dubai. It is true that late fees
had been imposed by the school authorities for delayed payment of
Mat. Appeal No. 1161/2017 13
tuition fees. Nonetheless, appellant has no case that either she by
herself paid the fees or that the children were terminated from the
school on account of the delayed payment of fees. She was not at all
an earning member of the family. She herself admits that respondent
was employed abroad. He has not, however, produced any
documents showing the details of his employment and such
production does not appear to be necessary in view of appellant’s
own admission that he has got employment. In our view, these facts
sufficiently prove that respondent has sufficient means to educate and
bring up the children. At one portion of her testimony, the appellant
said that the respondent was suspended from his job, but we find that
there is no evidence to prove this allegation. From the evidence on
record, in our view, the Family Court has rightly found that the
respondent is possessed of sufficient means and has financial
capacity to maintain both children.
18. As regards appellant’s financial capacity, the evidence is
confined to PW2, a close relative of the appellant. She said that
appellant is employed in a showroom and used to earn monthly
income of Rs.10,000/-. Any way there is no documentary evidence to
prove that the appellant has any source of income. Even assuming
Mat. Appeal No. 1161/2017 14
that she has source of income as stated by PW2, the question is
whether her present income is sufficient to bring up the wards and to
meet their educational expenses.
19. During pendency of this appeal and on the motion of the
appellant, this court by an order dated 9.4.2018, granted interim
custody of the two wards to the appellant and permitted her to secure
admission of the children at a school in Pathanamthitta. Pursuant to
the order, the minor wards were admitted in Madona International
Residential School, Pathanamthitta in 4th and 2nd standards,
respectively. They are now continuing their studies in the said school.
It is an admitted fact that they are staying with the appellant, her
parents and also the brother of the appellant in the family house.
The arrangement made by this court as per order dated 9.4.2018 is
only on a provisional basis and will be subject to the final outcome of
this appeal. Even though that order was challenged by the respondent
before the Hon’ble Supreme Court in SLP (civil) 12705-12706 of
2018, it was only confirmed.
20. The income which the appellant sought to prove through
PW2 seems to be insufficient to meet the educational and other
expenses of the children. No evidence is made available to convince
Mat. Appeal No. 1161/2017 15
the court that she has any more sources of income. It appears that
the expenses spent by the respondent for the wards’ education in
Indian High School, Dubai is far higher amount than what the
appellant now spends in the local school. Therefore, in the matter of
financial capacity of the appellant, as proved by evidence, we have
our own doubt as to how successfully she can promote the education
of the children in the native school.
21. It is one of the contentions of the appellant that the
respondent failed to produce the wards in compliance with the order
of the Family Court, Mavelikkara entrusting interim custody of the
children with the appellant. The respondent willfully removed the
children to Dubai by disobeying the order of the court is the allegation.
This contention was not substantiated. On the other hand, we are
convinced from the conduct of the respondent, following the order of
this court dated 2.4.2018 granting interim custody of the children, that
he has no tendency to disobey the orders of this court. He produced
the children and submitted to the interim arrangement of custody
made by this court and the said arrangement continues to be in force,
even now.
22. We interacted with the children in our chambers in order to
Mat. Appeal No. 1161/2017 16
ascertain their preferential choice of residence. During the course
of interaction, we were impressed that both wards were not happy
with the environment in which they are presently placed. Both of them
expressed their desire to study in the Indian High School, Dubai
where they felt being enriched by better education than from the
native school. If we are to attach importance to the quality of
education to be imparted to the wards, in our opinion, they will have to
be essentially sent to the respondent, who is presently abroad where
they are sure to get good quality of education as in the past. One of
the documents produced before the trial court shows that the elder
child Divya Susan Thomas secured a good track of academic record
while she was in the Indian High School, Dubai.
23. The learned counsel for the appellant submitted that, the
wards being girl children should essentially be left in the company of
the appellant mother, in the interest of their emotional and mental
development especially when they come closer to the age of attaining
puberty. In this respect learned counsel for the appellant brought to
our notice an illuminating decision of the Hon’ble Supreme Court,
Vivek Singh V. Romani Singh [(2017) 3 SC 231]. We extract
paragraphs 19 and 20 of the said decision herein below:
Mat. Appeal No. 1161/2017 17
” The aforesaid discussion leads us to feel that continuous company of
the mother with Saesha for some time, is absolutely essential. It may
also be underlying that the notion that a child’s primary need is for the
care and love of its mother, where she has been its primary care giving
parent, is supported by a vast body of psychological literature. Empirical
studies show that mother-infant ‘bonding’ begins at the child’s birth and
that infants as young as two months old frequently show signs of distress
when the mother is replaced by a substitute caregiver. An infant typically
responds preferentially to the sound of its mother’s voice by four weeks,
actively demands her presence and protests her absence by eight
months, and within the first year has formed a profound and enduring
attachment to her. Psychological theory hypothesies that the mother is
the centre of an infant’s small world, his psychological homebase, and
that she ‘must continue to be so for some years to come’.
Developmental psychologists believe that the quality and strength of this
original bond largely determines the child’s later capacity to fulfill her
individual potential and to form attachments to other individuals and to
the human community. No doubt this presumption in favour of maternal
custody as sound child welfare policy, is rebuttable and in a given case, it
can be shown that father is better suited to have the custody of the child.
Such an assessment, however, can be only after level playing field is
granted to both the parents. That has not happened in the instant case sofar.”
24. But, as per the said decision itself, no hard and fast
principle could be laid down entitling the mother of a girl child to have
custody indiscriminately in all cases irrespective of the special
circumstances in which the child is placed. In short, in all cases of
custody of a child, whether male or female, interim or permanent,
shall be decided based on the welfare considerations relating to the
Mat. Appeal No. 1161/2017 18
child. No fixed and rigid rule or any standard could be laid in this
respect as made clear by Hon’ble Supreme Court in Vivek Singh’s
case(supra). From the point of view of the financial status of the
parents, we are of the view that respondent could be placed on a
higher pedestal. If the wards are to gain better and qualitative
education, they have necessarily to be shifted to the Indian High
School at Dubai, where the wards, as they themselves claim, will feel
at home. The future of the wards is more important factor than
anything else since the children are considered by the society to be
an asset to the nation. In this respect, we extract paragraph 13 of
Vivek Singh’s case (cited supra).
“Second justification behind the “welfare” principle is the public
interest that stand served with the optimal growth of the children. It is
well recognised that children are the supreme asset of the nation.
Rightful place of the child in the sizeable fabric has been recognised in
many international covenants, which are adopted in this country as
well. Child-centric human rights jurisprudence that has been evolved
over a period of time is founded on the principle that public gooddemands proper growth of the child, who are the future of the nation. “
25. Considering the prospects and also the quality of
education which the minor children are to be assured, it appears to
be desirable that their present stay with the appellant should be
Mat. Appeal No. 1161/2017 19
shifted to the respondent, father. This, however, does not mean that
the wards are deprived of their company with the mother forever. The
relationship between the spouses has strained beyond such a repair
that an immediate reunion does not appear to be possible. Though
welfare of the children demands their stay in the joint company of the
appellant and respondent, it has become an impossibility. Therefore,
the court itself has to find out some practical solution to protect the
over all interest and welfare of the wards. The mother’s love,
affection and company with the girl children during their growing age
especially when they near the age of puberty cannot however, be
emphasised as a sole factor in deciding their over all welfare. This,
however, does not mean that the children should be deprived of the
love and affection of their mother especially when they near the age of
puberty. Being conscious of the realities of life and also the need for
mother’s affection and company, we consider that it would be proper if
the wards are allowed to be with the appellant, mother for the entire
period of annual school vacation as opined by the court below. The
appellant will be entitled to have free access to the wards through
telephone as well as similar means available to her. These facts
were taken note of by the learned Judge of the Family Court,
Mat. Appeal No. 1161/2017 20
Mabvelikkara and we do not therefore find any ground to interfere with
the order of limited custody allowed as per the impugned judgment.
In the result, confirming the impugned judgment dated 25.6.2017
of the Family Court, Mavelikkara we dismiss the appeal. The
appellant will handover the custody of the minor wards Eva Mary
Manoj and Leah Susan Manoj to the respondent on the next day of
the closing of the Madona International School for vacation, so as to
enable him to secure admission of the children in the Indian High
School at Dubai, in the forth coming academic year. The venue for
exchange of wards shall be the Family Court, Mavelikkara. We make
it clear that the Family Court, Mavelikkara will be at liberty to modify
and issue appropriate orders of custody of the minor wards in the
interest and their welfare, upon any substantial change of the
circumstances in the life of minor wards and the parents.
Sd/-
C.K.ABDUL REHIM,
JUDGE
Sd/-
T.V.ANILKUMAR,
JUDGE
al/-