Child Must Receive Love And Support From Both Parents Unless Proven Conduct Has Made One Parent Unworthy Of Custody Rights: Kerala High Court

While hearing a matrimonial appeal preferred by the mother, the Court interacted with the minor child and found that she has no objection to spent time with father but expressed reluctance to stay with the father for longer periods including overnight custody.

The Division Bench comprising Justice Raja Vijayaraghavan V and Justice P.M. Manoj observed that Courts have to ascertain 'What is the wish/desire of the child', but it must consider 'What would be in the best interest of the child' while deciding custody arrangements. It thus stated that Courts must distinguish between child's wishes and what is genuinely in the best interest of the child.

The Court thus upheld Family Court's order of granting visitation and contact rights to the father of a minor daughter aged 11 years. It also affirmed the overnight custody given to the father who is in Merchant Navy for few days during vacations and during his leave. It observed thus:

“The Court's duty and responsibility in custody disputes is to ensure that both parents maintain a healthy relationship with the child. Non-custodial parents should have sufficient visitation rights to prevent the child from losing social, physical, and psychological contact with either parent. Only in extreme circumstances should one parent be denied contact, and reasons must be clearly stated if this occurs. Courts are responsible for defining the nature, manner, and specifics of visitation rights to safeguard the child's continuous connection with both parents. The child's need for both parents' company takes precedence over the individual rights of the parents. In assessing custody, the court distinguishes between the child's wishes and what is genuinely in the child's best interest, taking into account all relevant circumstances.

The Family Court, Kozhikode refused to grant guardianship and permanent custody rights over the minor daughter aged `11 years to the father and granted permanent custody and guardianship to the mother. The Family Court, however, granted visitation and contact rights to the father who was working in the Merchant Navy. The Family Court also permitted for overnight custody to the father during vacation. 

The mother has preferred a matrimonial appeal aggrieved by the overnight custody rights given to the father. It was submitted that the child's emotional and mental well-being will be affected by the execution of the Family Court's order.

The father submitted that the daughter is entitled to love, care and protection of both the parents. It was also submitted that it would be in the best interest of the child to not deny social, physical, and psychological contact with either parent. It was also argued that the mother has no justifiable reasons to refuse custody rights to the father.

The Court referred to Apex Court decisions to state that welfare of child should be of paramount consideration while deciding custody matters. It stated that the Court must consider the best interest of the child by evaluating the statements of both the parents, rather than solely relying upon the perspective of one parent.

It further observed that even if custody rights were granted to one parent, the other parent should also be given sufficient visitation rights to maintain a relationship with the child. It stated that denial of contact with one parent should only be adopted in extreme cases with reasons provided.

“This is because the child benefits from the company of both parents. Visitation rights are granted for the welfare of minors and to ensure they can maintain relationships with both parents, not merely to protect parental rights,” added the Court.

The Court stated that a child requires love, affection, and company of both parents for the well-being of the child. It stated this is a basic human right for the child.

The Court further noted that in custody battles, children witness the hostile behaviour of parents against one another. It stated that children tend to take sides with one parent and view another parent in a negative light due to custody battles. It said that children facing parental conflicts could have detrimental effects and long-lasting psychological effects.

Such action of the fighting parents is unhealthy and deplorable, as it undermines the child's sense of security and stability, fostering feelings of confusion, guilt, and emotional distress. The child who becomes embroiled in parental conflicts suffers long-lasting psychological effects. It is crucial for parents to recognize the detrimental impact of their disputes on their children and strive to present a united front, prioritizing the child's need for love and support from both parents”, concluded the Court.

As such, the matrimonial appeal was dismissed. 

Counsel for Petitioner: Advocates Praveen K. Joy, Fathima Shalu S., Ardra Anil,Albin Varghese, Abisha.E.R, Anupama Nair, Adithya Lal , T.A.Joy, E.S.Saneej, M.P.Unnikrishnan, N.Abhilash, Deepu Rajagopal

Counsel for Respondents: Advocates N M Madhu, C S Rajani

Citation: 2024 LiveLaw Ker 313

Case Title: Lekha Komath V Harikrishnan Gopikarnakar

Case Number: Mat.Appeal No. 294 OF 2024

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