The Kerala High Court said that the child’s need for the company of both parents takes precedence over the individual rights of the parents.

The Court said thus in a Matrimonial Appeal preferred against the order of the Family Court and the father had filed a petition seeking custody and declaration of guardianship of his minor daughter.

A Division Bench of Justice Raja Vijayaraghavan V and Justice P.M. Manoj remarked, “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 Bench emphasised that in matters of child custody, the primary and paramount consideration is always the welfare of the child.

Advocate Praveen K. Joy appeared for the appellant while Advocate N.M. Madhu appeared for the respondent.

Facts of the Case -

The Family Court refused to grant custody of the minor child and to appoint the father as the guardian. However, he was granted visitation right, contact rights, and custody as and when the appellant (wife), who was a sailor in the Merchant Navy, came on leave. The Court granted following reliefs to the respondent/father –

1. The petitioner/father is permitted to make audio or video call to the minor child on every Tuesdays and Fridays for 15 minutes in between 7 P.M and 8 P.M. of Indian Standard Time.

2. If the petitioner is here on leave respondent shall hand over the custody of the minor child on all Saturday from 8 A.M. till 8 P.M. of Sunday.

3. If the petitioner/father is here during Onam and Christmas holidays, the custody of the minor child is to be given to the petitioner for four days.

4. If the petitioner is here during summer holidays, respondent/ mother shall hand over the custody of the minor child one week in the month of April and one week in the month of May.

5. Respondent/mother shall inform the petitioner regarding the entire aspects about the studies and other important matters of the child.

Being aggrieved by the above directions, the appellant/wife approached the High Court.

The High Court after hearing the contentions of the counsel observed, “Technical objections should not hinder decisions when the child's welfare is at stake. The court must adopt a holistic view, considering the perspectives of both parents, and focus on what is truly in the best interest of the child, avoiding biases that arise from parental disputes. The child’s well-being is central, and the love, affection, and company of both parents are essential, forming a basic human right for the child. The Court's duty and responsibility in custody disputes is to ensure that both parents maintain a healthy relationship with the child.”

The Court noted that non-custodial parents should have sufficient visitation rights to prevent the child from losing social, physical, and psychological contact with either parent and only in extreme circumstances should one parent be denied contact, and reasons must be clearly stated if this occurs.

“In the light of the principles above, we have carefully evaluated the contentions and also the directions issued by the learned Family Court. We are of the view that all relevant aspects have been taken care of by the Family Court bearing in mind that the welfare of the child is the foremost concern. The Family Court has also upheld the right of the child to the love, care, and affection of both parents. In that view of the matter, we find no reason to interfere with the well-considered order passed by the Family Court”, it said.

Before parting, the Court observed that in child custody battles, parents often engage in constant conflicts and hostile behaviour towards each other, inadvertently convincing the child that the other parent is the antagonist and such harmful dynamic and the habit of spewing venom at each other poison the child's perception, creating an environment where the child feels compelled to choose sides and view one parent in a negative light.

“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”, it concluded.

Accordingly, the High Court dismissed the petition and upheld the order of the Family Court.

Cause Title- ABC v. XYZ (Neutral Citation: 2024:KER:34953)


Appellant: 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, and Deepu Rajagopal.

Respondent: Advocates N.M. Madhu and C.S. Rajani.

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