(Prayer in OP No.513 of 2022 This petition has been filed seeking to grant permanent custody of the Minor Child Adwaidh Menon, aged about 10 years old to the Petitioner.

In OP No.554 of 2023 This petition has been filed seeking;

                     (i)to appoint the petitioner as the guardian of the person of the minor Adwaidh Menon, aged about 11 years,

                     (ii)to permit the petitioner to retain and have permanent custody of the minor Adwaidh Menon, aged about 11 years.)

Common Order

1. Both these Original Petitions have been filed for custody of the minor child, namely, Advaidh Menon.

2. The original petition in O.P.No.513 of 2022 has been filed by the father for grant of permanent custody of the child. The original petition in O.P.No.554 of 2023 has been filed by the mother for appointment of guardian of the minor Advaidh Menon and for permanent custody.

3. For the sake of convenience and brevity, the petitioner in OP No.513 of 2022 and respondent in O.P.No.554 of 2023 hereinafter will be referred to as petitioner/father of the minor child and the respondent in O.P.No.513 of 2022 and the petitioner in O.P.No.554 of 2023 will be referred to as respondent/mother of the minor child, in both the petitions.

4. The marriage between the petitioner and the respondent was solemnised on 04.07.2010 at Thrissur, Kerala as per Hindu rites and customs. Out of wed lock, a male child namely, Advaidh Menon was born on 11.09.2012. Now the minor child is under the custody of the respondent. Therefore, both the parents, namely, the petitioner/father as well as the respondent/mother filed these petitions for permanent custody of the child and for guardianship of the minor child respectively.

5. According to the petitioner, due to circumstances beyond their control, the marriage between the petitioner and the respondent was dissolved by an order of divorce by mutual consent through O.P.No.1226 of 2014 on the file of the Family Court, Ernakulam. Both the petitioner and the respondent voluntarily agreed in the said divorce proceedings that the petitioner shall bring the child from Kathar to Ernakulam and provide access and interim custody of the minor child to the respondent within two months from the date of receipt of copy of the order of divorce and also the date of producing the child will be intimated to the respondent 10 days prior and also the petitioner shall arrange to give day time access of the child to the respondent during every year by bringing the child to Ernakulam from Kathar, consecutively for 7 days in the months of July, August till the child attains 5 years. The respondent failed to honour the commitment given by the mutual consent. Thereafter, the petitioner filed I.A.No.2894 of 2006 in the said OP No.1226 of 2014 on the file of the Family Court, Ernakulam, seeking direction from the Court to give day time access to the minor child for a period of 7 days and the said petition was dismissed through order dated 30.08.2018. Aggrieved by the said order, the petitioner preferred an appeal challenging the said order before the Kerala High Court in O.P.F.C.No.667 of 2018 and the same was also dismissed through order dated 14.12.2018. At the time of dismissing the said petition, the High Court of Kerala held that the dismissal of the petition will not stand in the way of the petitioner seeking appropriate remedy available under law for getting custody of the child and or for having visitation of the minor child. Now the minor child is under the custody of the respondent at Alwerpet, Chennai. The petitioner was unable to have a free access to his child and recently able to locate the child. But the respondent thwarted all the attempts of the petitioner to visit his child. The conduct of the respondent clearly shows her intention that only to prevent the access to the minor child and also refused and to return the letter sent by the petitioner. The petitioner is always ready and willing to contribute in any manner to up-bringing the child and the custody of the minor child Advaidh Menon has been granted to the petitioner.

6. The case of the respondent is that the marriage between the petitioner and the respondent was solemnised on 04.07.2010 and the minor child Advaidh Menon was born on 11.09.2012. Right from the marriage, the respondent realised that the petitioner married her only in order to gain monetary advantage to establish links for his new business in the middle east using the connections of the immediate and the extended families of the respondent and her parents. When the respondent was pregnant, the petitioner’s parents unwanted the pregnancy and they advised to abort the child. When the respondent refused for the same, they attempted to take the respondent for hospital to terminate the pregnancy. However, she has managed to escape. Thereafter, the father of the respondent took her to Qatar where she gave birth to her child namely Advaidh Menon on 11.09.2012.

                     6.1.The petitioner has not given the respondent any financial aid nor helped during her pregnancy and delivery. On the other hand, he created a lot of mental stress by refusing to give her any support even when she asked for. Therefore, she was entirely dependant on the petitioner even for her small needs and when the child attained one year, the respondent wanted to have celebration in Calcutta, for that, the petitioner informed that he had arranged function at British Club. However, it was not arranged. The petitioner did not take care about the child. Already the marriage between the parties was dissolved through decree dated 17.08.2015 and now the child is aged about 10 years and 11 months. The petitioner had not taken care for the welfare of the child. The petitioner agreed to give permanent custody of the minor child to the respondent. Thereafter, the petitioner filed I.A.No.289 of 2006 and the same was dismissed. The same was challenged through appeal before the Hon’ble High Court of Kerala OP.FC No.667 of 2018 and the same was also dismissed. The attitude of the petitioner and his conduct in the past years clearly prove himself unfit to be the guardian or to have custody of the minor child. The petitioner being the father, who never cared for the minor child for years together, cannot be given guardianship and custodial rights over the child. Therefore, the respondent has to be appointed as guardian for the minor child and the custody of the minor child has to be ordered with the respondent.

7. This Court heard both sides and perused the records.

8. Upon perusing the records and hearing both sides, the points for determination in these petitions are as follows:

                     (i)Whether the petitioner in OP No.513 of 2022 is entitled to custody of the minor child a prayed for?

                     (ii)Whether the petitioner in O.P.No.554 of 2023 is entitled to appointment of guardian to the minor child and custody of the minor child as prayed for?

9. In order to prove the case of the petitioner, he was examined as PW1 and marked Exs.P1 to P9. On the side of the respondent, she was examined as RW1 and Exs.R1 to R11 were marked. Both the petitioner as well as the respondent have filed proof affidavits in support of their petition averments. This Court also carefully perused the entire evidence of PW1 and RW1 and the documents marked on both sides.

10. It is an admitted fact that already marriage between the petitioner and the respondent was dissolved through mutual consent by the competent Court and now the child is under the custody of the respondent/mother. The petitioner/father filed a petition for custody of the minor child, who is aged about 11 years and the respondent/mother also filed a petition for appointment of guardian and for custody. Both the parents are claiming custody of the child. However, the child is now under the care and custody of the respondent/mother. Even as per the petition averments and the evidence of PW1, there is no adverse remarks against the respondent/mother in having the custody of the minor child.

11. Per contra, the evidence of RW1 clearly established that the minor child is under the care and custody of the mother/respondent and he is very comfortable with the mother and he is studying in a reputed school. It is well settled law that as far as custody of the minor child is concerned, the welfare of the minor child is paramount consideration. Taking into consideration of the age of the minor child and he is under care and custody of the mother/respondent and without any valid grounds, this Court cannot disturb the custody of the minor child. The petitioner also failed to establish that if the minor child is under the care and custody of the respondent, some hardship would cause to the minor child and his future will be affected. In the absence of any adverse remarks against the respondent/mother in respect of the custody of the minor child, it may not be proper to entrust the custody of the minor child to the petitioner/father.

12. Therefore, the petitioner/father is not entitled to custody of the minor child. At the same time, the respondent/mother is entitled to act as guardian for the minor child namely Advaidh Menon and custody of the minor child shall not be disturbed. However, the petitioner being the father of the child, can be given visitation rights to see the minor child. This Court also passed interim order dated 26.09.2023 by permitting the petitioner/father to visit the child on first and third Saturdays of every month between 11 a.m and 1.00 pm., at the Child Care Centre, Family Court, Chennai. Thereafter, the time was modified to before 2 p.m to 4.pm. Therefore, the same visitation rights can be extended through this petition.

13. Accordingly, the original petition no.554 of 2023 filed by the respondent/mother is allowed and the respondent namely Dhanya Prakash, the mother of the minor child is appointed as guardian for the person and property of the minor child, namely Advaidh Menon till he attains the age of majority. The respondent/mother is permitted to retain the custody of the minor child till he attains the age of majority.

14. The original petition no.513 of 2022 filed by the petitioner /father is dismissed. However, the petitioner/father is permitted to visit the minor child namely Advaidh Menon on first and third Saturdays of every month between 2 p.m to 4.00 p.m at the Child Care Centre, Family Court, Chennai and thereafter, the respondent /mother can retain the custody of the minor child.