[Custody Battle] Children Have Right To Company Of Both Parents, Severing Contact With One Parent Snaps Emotional & Psychological Bond: Kerala HC

The Kerala High Court recently reiterated the settled position that while considering custody matters, Court must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of the parents.

The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed that if the child is denied the opportunity to interact with one of the parents, it certainly will cause "snapping of the emotional and psychological bondage".

While stating so, the bench took note of the position in Yashita Sahu v. State of Rajasthan (2020) where the Supreme Court held that child has a human right to have the love and affection of both parents.

"Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation and every re-union may have a traumatic and psychosomatic impact on the child," the SC had said.

In this light, it was stated that even if the custody is given to one parent, the other parent must have sufficient visitation rights to ensure that the child does not lose social, physical and psychological contact. It emphasized that only in extreme circumstances that one parent should be denied contact with the child; reasons must be assigned if one parent is to be denied any visitation rights or contact with the child.

In the present case, owing a matrimonial discord, the Petitioner-mother had sought the custody of her girl child. The Family Court while allowing her application, directed her to give interim custody of the child to her father from 10.30 am on all 2nd Saturdays till 4 pm on ensuing Sundays, at the premises of the Family Court, Ettumanoor. It was further directed that interim custody shall be granted from 10.30 am to 4 pm on all Sundays except Second Sundays, in the premises of the Family Court, Ettumanoor, and that the father would be permitted to interact with the minor child through video call between 6.30 pm and 7 pm on all Wednesdays.

In this context, it was contended by Advocates Aneesh K.R. and Saurav B. on behalf of the petitioner mother in the instant petition that the child was exhausted when she was brought to the premises of the Family Court to be given in custody to the respondents. The Counsels submitted that the petitioner having to take the child to the Family Court on Sunday, which was the only holiday available to her, causes inconvenience.

The Court in this case took note of the observations made by the Apex Court in Yashita Sahu v. State of Rajasthan (2020) wherein it had been laid down that while deciding matters of custody of a child, primary and paramount consideration is the welfare of the child; it is not the view of one spouse alone which has to be taken into consideration, and that the issue of custody ought to be decided only on the basis of the best interest of the child.

The Court also took note of the decision in Vasudha Sethi and others v. Kiran V. Bhaskar & Anr. (2022), wherein the Apex Court had held that whenever the court disturbs the custody of one parent, unless there are compelling reasons, the court would provide for visitation rights to the other parent, due to the reason that a child needs the company of both parents.

Viewed in this context, the Court could not find any cause for interference with the Family Court's order. 

"While the child is allowed to be with the mother, there shall be an opportunity for the father to have frequent interaction with the child. Viewed so, we find no reason to interfere with the impugned order", the Court held. 

In this light, the Court dismissed the petition, finding that the inconvenience caused to the mother by traveling to the Family Court, a short distance, could not be reason enough to deny the father of the opportunity to interact with the child. 

Advocates M.S. Amal Dharshan and Thushara James appeared on behalf of the respondents in the instant case. 

Case Title: NG v. AKJ & Ors

Citation: 2022 LiveLaw (Ker) 574