IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP (FC).No. 1634 of 2011(R) ---------------------------------------- OP.1186/2007 of FAMILY COURT,ERNAKULAM .................... PETITIONER ------------------- A.V.SANKARANARAYANAN,AGED 51 YEARS, S/O.VELU, 'ARAVIND', KALATHARA ROAD, RAJEEV GANDHI LANE,MARADU PO,ERNAKULAM. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD RESPONDENT(S): --------------------------- SINDHU SANKAR,AGED 44 YEARS, RESIDING AT TC 48/327-1, SHRADHA,MUTTATHARA, THIRUVANANTHAPURAM. 695 012. ADV. SMT.K.KUSUMAM THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08/07/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(FC) NO.1634/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PETITION IN OP(G&W) NO.1186/2007 ON THE FILE OF THE HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM. P2:- COPY OF THE WRITTEN STATEMENT IN OP(G&W) 1186/2007 ON THE FILE OF THE HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM. P3:- COPY OF THE AMENDMENT PETITION, IA. 2736/2010 IN OP. (G&W) 1186/2007 ON THE FILE OF THE HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM. P4:- COPY OF THE OBJECTION TO IA. NO.2736/2010 IN OP(G&W) 1186/2007 ON THE FILE OF THE HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM. P5:- COPY OF THE ORDER DTD. 27.12.2010 IN IA. 2736/2010 IN OP(G&W) 1186/2007 OF THE HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss Thottathil B.Radhakrishnan & K.Surendra Mohan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = O.P.(FC).No.1634 of 2011-R = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of July, 2011. Judgment “CR” Thottathil B.Radhakrishnan, J. 1.Petitioner's wife applied to the Family Court for custody of two daughters who reside with her. Petitioner filed objections. Later, he sought leave to amend the objections to plead that his wife is unfit to have the custody of the children. He also wanted to seek the relief that he be granted custody. The Family Court refused to grant leave. Challenging that, the husband has filed this original petition under Article 227 of the Constitution of India. 2.Law shows special concern for children. It provides for their protection. Law and justice have deep concern for children. Julius Stone, in OPFC1634/11 -: 2 :- “Social Dimensions of Law and Justice”, points out that such concern for children is manifest in modern law. This concern for children pertains to their deficiency in capacity for self-provision, self-protection and self-guidance. This generates the often reiterated paramountcy of the welfare of the child. 3.The concept of parens patriae, often stated to have originated in the English common law, can be seen to permeate as well, in all schools of law recognised, followed and applied by civilized societies and Nations. This responsibility of the Sovereign is a prerogative, which is obligatory. There is no choice left with the Sovereign in the matter, to exercise or not to, when a given situation demands such exercise, going by the commands of the Constitution and the laws. The duty is to act as guardian of persons with legal disabilities, including children. This is a protective component of the obligations of society. That gets exercised through the Sovereign. This concept is accepted as an inbuilt OPFC1634/11 -: 3 :- content of the obligations of the State. Provisions for custody, care, food, clothing and shelter to a child are eloquently referable to the constitutional scheme as embodied in Articles 21, 23 to 27 and 39 as noted by this Court in Mathew Varghese v. Rosamma Varghese[2003(3) KLT 6 (FB)(Five Judges)]. 4.For the exercise of role of the State as a fictional parent, in so far as it relates to children who get entangled in matrimonial conflicts of their parents, the judiciary holds the mantle in terms of the statute laws under the gaze of the constitutional values. It is, therefore, the duty and obligation of the judiciary to take care that appropriate provisions are made under its orders regarding children who, unfortunately, have to stand as the real, and in many cases, mute, victims of matrimonial conflicts. It is this constitutional value that finds recognition as statutory norm in different provisions, including Section 26 of the Hindu Marriage Act, 1955; Sections 41 to 44 in OPFC1634/11 -: 4 :- Chapter XI of the Divorce Act, 1869; Section 17 of the Guardians and Wards Act, 1890 and similar provisions. A child who is capable of responding is prompted by the justice delivery system to express its views also, in matters relating to its desires regarding its affairs including company of parents. When it does so, it is speaking to its ultimate guardian in terms of the Constitution and the Laws. In discharging such parens patriae jurisdiction, the courts cannot ignore any material that may be seen during the proceedings as of relevance. This may include pleadings, evidence and legitimate inferences, which may be inexcusable even on the basis of conduct of parties during the litigation. The Court would have to weigh all such materials while exercising its authority parens patriae. This has also to be borne in mind while considering rival claims for custody of children. 5.Having regard to the parameters of jurisdiction, power and nature of duties that it would exercise in connection with custody of a child, the Family OPFC1634/11 -: 5 :- Court is bound to look into all aspects in arriving at a conclusion as to what shall be the order, having regard to the best interest of the particular child, even in the absence of allegations and counter allegations between the parents or other rival claimants for custody. The enquiry and the predominant criterion for decision on that issue shall be as to what would best serve the interest and welfare of the minor. The consideration on merits, of the rival contentions, shall be done bearing the welfare of the child as of paramount importance. Such a question is not to be decided merely based on the rights of the parties under the law. For support, see Chandrakala Menon v. Vipin Menon[(1993) 2 SCC 6], Joshi v. Madhav Unde[(1998) 1 SCC 112], Sarita Sharma v. Sushil Sharma[(2000) 3 SCC 14] and Sumedha Nagpal v. State of Delhi[(2000) 9 SCC 745]. 6.Therefore, the learned counsel for the petitioner is justified in saying that there could be no technical ground ultimately, to exclude from OPFC1634/11 -: 6 :- consideration, the eligibility of the petitioner, who is the father of the children, to custody rights. 7.Though it is suggested on behalf of the wife that delay in the litigation would be against her interest, we notice that the two daughters stay with their mother in Thiruvananthapuram and are studying in a school there. Any delay attributable to the application for leave to amend would not adversely affect the interest of the daughters or the rights of the mother. Not only that, the report of the court below shows that evidence is yet to be recorded in the proceedings from which this matter arises, though two witnesses were examined in a connected matter. 8.With the aforesaid, we are satisfied that multiplicity of litigations can also be avoided if the amendment is allowed. Not only that, if the issues are once decided on the application of the wife, that may even affect the right of the OPFC1634/11 -: 7 :- husband, if any, to make a fresh application for custody etc. The impugned order, if allowed to stand, would result in miscarriage of justice. 9.For the aforesaid reasons, the impugned order is liable to be set aside and the petitioner's application for leave to amend his pleadings before the Family Court is to be allowed on terms. 10.We also record the apprehension sounded on behalf of the wife that, in the absence of custody orders, the petitioner before us may use illegal means to remove the children from their present residence in Thiruvananthapuram. This is strongly refuted on behalf of the petitioner. Taking this into consideration, it is ordered that the daughters of the parties to this litigation, will continue to reside with their mother, till a final decision is taken in the matters pending before the Family Court. In the event of any real and reasonable apprehension as to commission of any unlawful act, or attempt OPFC1634/11 -: 8 :- therefor, she may move either the Family Court or the jurisdictional police. In the result, this original petition is allowed in the following terms: a)Ext.P5 is quashed. b)It is ordered that I.A.No.2736 of 2010 in O.P.No.1186 of 2007 of the Family Court, Thiruvananthapuram will stand allowed on condition that the petitioner pays the respondent, through counsel appearing for her before this Court, an amount of Rs.5,000/- as costs payable within three weeks from today. c)Parties are directed to mark their appearance before the Family Court on 2.8.2011. d)If costs as aforesaid is paid, the court below, will grant the petitioner herein a OPFC1634/11 -: 9 :- period of two weeks from 2.8.2011 to carry out the amendments and also to produce the amended copies of the objections in accordance with law. e)It is clarified that nothing stated in this judgment will stand in the way of the petitioner applying for visitorial rights, in accordance with law, at least, to see the children. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- K.Surendra Mohan, Judge. Sha/1207 -true copy- P.S.to Judge.