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Divya Susan Thomas @ Divya Susan … vs Manoj Varghese on 15 March, 2019

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.
———————————
Mat Appeal No.1161 of 2017
———————————-
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 is

conductive 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 so

far.”

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 good

demands 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/-

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