The Kerala High Court on 8 July 2011 in Sankaranarayanan Vs. Sindhu Sankar, 2011 (3) KLT SN 102 (Case No.102) : 2011 (3) KLJ 517 : ILR 2011 (3) Ker. 505 : 2011 (3) KHC 331 held that “having regard to the parameters of jurisdiction, power and nature of duties that it would exercise in connection with custody of a child, the Family Court is bound to look into all aspects in arriving at a conclusion as to what shall be the order, having regard to the best interest of the particular child, even in the absence of allegations and counter allegations between the parents or other rival claimants for custody.
A bench comprising of Justice Thottathil B. Radhakrishnan and Justice K. Surendra Mohan observed that “the enquiry and the predominant criterion for decision on that issue shall be as to what would best serve the interest and welfare of the minor. The consideration on merits, of the rival contentions, shall be done bearing the welfare of the child as of paramount importance. Such a question is not to be decided merely based on the rights of the parties under the law.
For support, see :- Chandrakala Menon v. Vipin Menon [(1993) 2 SCC 6], Joshi v. Madhav Unde [(1998) 1 SCC 112], Sarita Sharma v. Sushil Sharma [(2000) 3 SCC 14] and Sumedha Nagpal v. State of Delhi [(2000) 9 SCC 745].
Law shows special concern for children. It provides for their protection. Law and justice have deep concern for children. Julius Stone, in “Social Dimensions of Law and Justice”, points out that such concern for children is manifest in modern law. This concern for children pertains to their deficiency in capacity for self-provision, self-protection and self-guidance. This generates the often reiterated paramountcy of the welfare of the child.
The concept of parens patriae, often stated to have originated in the English common law, can be seen to permeate as well, in all schools of law recognised, followed and applied by civilized societies and Nations. This responsibility of the Sovereign is a prerogative, which is obligatory.
There is no choice left with the Sovereign in the matter, to exercise or not to, when a given situation demands such exercise, going by the commands of the Constitution and the laws. The duty is to act as guardian of persons with legal disabilities, including children. This is a protective component of the obligations of society. That gets exercised through the Sovereign. This concept is accepted as an inbuilt content of the obligations of the State. Provisions for custody, care, food, clothing and shelter to a child are eloquently referable to the constitutional scheme as embodied in Articles 21, 23 to 27 and 39 as noted by the Court in Mathew Varghese v. Rosamma Varghese [2003 (3) KLT 6 (FB)(Five Judges)].
For the exercise of role of the State as a fictional parent, in so far as it relates to children who get entangled in matrimonial conflicts of their parents, the judiciary holds the mantle in terms of the statute laws under the gaze of the constitutional values. It is, therefore, the duty and obligation of the judiciary to take care that appropriate provisions are made under its orders regarding children who, unfortunately, have to stand as the real, and in many cases, mute, victims of matrimonial conflicts.
This is one of the reasons why a child who is capable of responding is prompted by the justice delivery system to express its views also, in matters relating to its desires regarding its affairs including company of parents. In discharging such parens patriae jurisdiction, the courts cannot ignore any material that may be seen during the proceedings as of relevance. This may include pleadings, evidence and legitimate inferences, which may be inexcusable even on the basis of conduct of parties during the litigation. The Court would have to weigh all such materials while exercising its authority parens patriae. This has also to be borne in mind while considering rival claims for custody of children.
Facts of the Case
Petitioner’s wife applied to the Family Court for custody of two daughters who reside with her. Petitioner filed objections. Later, he sought leave to amend the objections to plead that his wife is unfit to have the custody of the children. He also wanted to seek the relief that he be granted custody. The Family Court refused to grant leave. Challenging that, the husband has filed this original petition under Article 227 of the Constitution of India.
While allowing the Original Petition the Court held that the learned counsel for the petitioner is justified in saying that there could be no technical ground ultimately, to exclude from consideration, the eligibility of the petitioner, who is the father of the children, to custody rights.
Though it is suggested on behalf of the wife that delay in the litigation would be against her interest, the Court noticed that the two daughters stay with their mother in Thiruvananthapuram and are studying in a school there. Any delay attributable to the application for leave to amend would not adversely affect the interest of the daughters or the rights of the mother. Not only that, the report of the court below shows that evidence is yet to be recorded in the proceedings from which this matter arises, though two witnesses were examined in a connected matter.
With the aforesaid, the Court satisfied that multiplicity of litigations can also be avoided if the amendment is allowed. Not only that, if the issues are once decided on the application of the wife, that may even affect the right of the husband, if any, to make a fresh application for custody etc. The impugned order, if allowed to stand, would result in miscarriage of justice.
For the aforesaid reasons, the impugned order setting aside and the petitioner’s application for leave to amend his pleadings before the Family Court allowed on terms.
The Court also recorded the apprehension sounded on behalf of the wife that, in the absence of custody orders, the petitioner may use illegal means to remove the children from their present residence in Thiruvananthapuram. This is strongly refuted on behalf of the petitioner. Taking this into consideration, it is ordered that the daughters of the parties to this litigation, will continue to reside with their mother, till a final decision is taken in the matters pending before the Family Court.
In the event of any real and reasonable apprehension as to commission of any unlawful act, or attempt therefor, she may move either the Family Court or the jurisdictional police. In the result, this original petition is allowed.