IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 MFA.No. 1216 of 1999(A) ----------------------- OP.((G&W) NO. 56/1999 of DISTRICT COURT, ALAPPUZHA .................... APPELLANT(S)/PETITIONER: -------------- ELIZABETH DANIEL, MULLATHERIL BETHAL HOUSE, PALLIPPAD SOUTH, MUTTOM MURI, PALLIPPAD VILLAGE. BY ADV. SRI.K.K.JOHN RESPONDENT(S)/RESPONDENT: --------------- MATHEWS MADATHETHU, S/O. ABRAHAM, MADATHETHU HOUSE, KEEKOZHOOR MURI, CHERUKOL VILLAGE, RANNY TALUK. ADVS. SRI.K.RADHAKRISHNAN SRI.S.VENKATASUBRAMONIA IYER(SR.) SRI.P.R.VENKETESH SMT.PRABHA R.MENON FOR ADV. COMMSR. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2009 ALONG WITH MFA NO. 1286 OF 1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.F.A. NOS. 1216 & 1286 OF 1999 --------------------------------------------------------- Dated this the 20th day of January, 2009 JUDGMENT Ravikumar J. These appeals arise out of a common order of the District Court, Alappuzha in O.P.Nos. 55 of 1999 and 56 of 1999. M.F.A. No.1286 of 1999 is directed against the order in O.P. No. 55 of 1999 and M.F.A. No.1216 of 1999 is against the order in O.P.No.56 of 1999. The parties are referred to hereafter in accordance with their status in M.F.A.No.1286 of 99, for convenience. 2. The appellant-husband was the petitioner in the former Original Petition and his wife was the respondent therein and in the latter Original Petition their status was exactly the vice-versa. They belong to Christain community and their marriage was solemnized on 31.12.1991. In their wedlock two children namely, Stephy Susan Mathews and Abhishek Abraham Mathews, were born and they are now, aged 16 years and 12 years respectively. Both the petitions were filed under Section 25 of the Guardians and Wards Act, 1890. O.P .No. 55 of 1999 was filed for the custody of the minor daughter Stephy Susan Mathews and O.P. No.56 of 1999 was filed for the custody of the minor son Abhishek Abraham M.F.A. NOS.1216 &1286/1999 2 Mathews. 3. The cases on hand unfold the unfortunate plight of one brother and sister who ar, the spite and legal fight between their parents put them to spend it gloomily. The facts of the case, in succinct, are as follows:- The appellant is an Advocate and the respondent is an Officer in the Kerala Agricultural Department. In the beginning their marital life was smooth and joyful. Later, disharmony cropped up on various reasons and bickering became a routine in their life. Consequential irretrievable breakdown of matrimonial tie made them to approach the court below with the aforesaid petitions. The facts that they had washed dirty linen in public and that they accused each other for the failure in life are evident from their respective pleadings. Unfortunate incidents occurred during the process of conciliation set at naught the earnest efforts of the relatives and mediators on either side, to set right the matrimonial tie. There is conflict even in regard to the cause of action. They accuse unauthorized removal of the respective child from custody, on each other. Based on their pleadings the point whether custody of the minor daughter Stephy Susan Mathews could be given to the appellant was formulated for consideration in O.P.No.55 of 1999 and in O.P. No. 56 of 1999 whether the custody of minor Abhishek Abraham Mathews could be given to the respondent was M.F.A. NOS.1216 &1286/1999 3 formulated as the point for consideration. Both the said petitions were tried jointly and evidence was recorded in O.P.No.55of 1999. On the side of the appellant PWs. 1 to 7 were examined and Exts.A1 to A6 were marked and on the respondent’s side RWs. 1 to 7 were examined and Exts.B1 to B5 were marked. The court below observed that both the parties have adduced evidence beyond their respective pleadings and at the same time, failed to prove properly the facts alleged in their respective petitions. 4. The hefty allegations and counter allegations and the evidence adduced by both the parties would reveal that they carry aspersions and imputations that are not venial. According to the appellant the respondent is a woman of loose morals and she is interested in extra marital relationships. His case is that she got conceived during separation and then, got in aborted without his knowledge and consent. The respondent reciprocated that the appellant was having delusion of infidelity and inclination for excessive and perverted sexual intercourse. It is her case that it was the said reasons coupled with his cruelty, both mental and physical, that made her to leave him and to live separately. Both of them unsuccessfully attempted to depict each other as cruel and impossible to be endured and to live with by citing certain incidents. The court below has taken into consideration such circumstances for the limited purpose of M.F.A. NOS.1216 &1286/1999 4 arriving at a decision required to be made under Section 25 of the Guardians and Wards Act. In this context it is apposite to refer to the decision of the Apex Court reported in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 wherein it was held as follows: " Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance the requirements of welfare of the minor children and the rights of their respective parents over them”. Further it was held: "The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases”. 5. The evidence in these cases would reveal that both the parties have concentrated in highlighting the defects in the upbringing of the respective M.F.A. NOS.1216 &1286/1999 5 child by the opposite party and at the same time, claimed capacity and capability besides conduciveness for the upbringing of the child for whose custody he/she filed the petition. Though the court below was confronted with conflicting demands ,the impugned common order would reveal that it was passed giving paramount consideration for the welfare of the concerned child in each of the cases. As already stated, the Apex Court in the decision mentioned above held that in case of a dispute between the mother and the father, the court is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. In this case the court below vide the impugned common order struck such a balance with cogent reasons and held that the custody of the respective minors shall not be disturbed then. While dismissing the respective petitions filed by the appellant and respondent herein viz., O.P. Nos. 55 of 1999 and 56 of 1999 it was thus observed virtually as an arrangement: "In the result, both the petitions are dismissed and the custody of minor Abhishek shall remain with the petitioner and the custody of minor Stephy Susan Mathews with the respondent. The petitioner is allowed to take his daughter during half of the holidays of Mid- summer,Onam and X’mas and entrust with the respondent on the previous day when the school reopens and the respondent is allowed to take the M.F.A. NOS.1216 &1286/1999 6 custody of the minor Abhishek Abraham Mathews on the evening of alternate Saturday and entrust on Sunday evening”. 6. According to us, the conclusions of the court below and the reasons assigned are true to the object and purpose of the Guardians and Wards Act. There is no legal infirmity or illegality with the said common order carrying the aforesaid just and proper arrangement. We, therefore, find no reason to interfere with the common order passed by the Court below in O.P. Nos. 55 of 1999 and 56 of 1999. 7. However, when the two minor children were produced before this Court, they interacted with each other and therefore, with a view to give them more such opportunity an order was passed on 20.11.2008 appointing Advocate Smt. Prabha. R. Menon as conciliator and directing the parties to produce the children before her on 29.12.2008 at about 10.30.A.M. at her residence and to leave them with her till 4.P.M. on that day. The Conciliator has, now, filed a report dated 19.1.2009. It is stated therein that the children are, now, aged 16 years and 12 years respectively and that they were brought to her on 29.12.2008. She interacted with them and also succeeded to a certain extent, to make them interact with each other. It is reported that Stephy Susan Mathews is mature of her age and she talked M.F.A. NOS.1216 &1286/1999 7 freely and she was found interested in talking with Abhishek Abraham Mathews. It is also reported that Abhishek Abraham Mathews was very self conscious, cool and indifferent and that he had shown an indifferent expression. They told the conciliator that they have heard of each other. On account of the indifferent attitude of Abhishek Abraham Mathews interaction was not fruitful. He is reported to have told that he had no grudge or any special feeling for his sister and that he was happy the way he was with his father and mother (stepmother). The conciliator further reported that Stephy Susan Mathews told her that she would appreciate it if there was no further interactions because it was upsetting her and in consequence, affecting her studies. She had also told the conciliator that she would be happy to continue in the same way, with her mother till her brother became old enough to take a decision on his own to meet her. The report further reveals the earnest efforts made by the conciliator despite the stand of the said minor children. In short, the report of the conciliator makes it clear that passage of time did not make any welcome change in the situation and both the minors are happy to continue in their respective familiar surroundings. Any attempt to disturb the present arrangement may upset the minor children and disturbing the present arrangement may not be conducive to their welfare as it may also affect their health and education. M.F.A. NOS.1216 &1286/1999 8 8. In the circumstances, we are of the view that the arrangement being followed in terms of the common order of the District Court, Alappuzha in O.P. Nos. 55 of 1999 and 56 of 1999 can go on until the children take decisions otherwise, on their own, perhaps, on attaining the age of discretion. Before parting with the case, we may record our strong appreciation for the genuine and earnest efforts on the part of Advocate Smt.Prabha.R. Menon to bring about affection and love in the minds of the minor children, the innocent brother and sister and we hope that her endeavour would have sown seeds for the same. Accordingly, the appeals are dismissed with the observation that the arrangement being followed in terms of the common order of the District Court, Alappuzha in O.P.Nos. 55 of 1999 and 56 of 1999 shall continue at present. In the circumstances, there is no order as to costs. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.F.A. NOS.1216 &1286/1999 9 P.R. RAMAN & C.T. RAVIKUMAR, JJ. M.F.A.NOS.1216 & 1286/99 JUDGMENT 20th January, 2009