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Ansar vs Nadeera on 12 February, 2019

O.P.(FC) No.571/2018 1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940

OP (FC).No. 571 of 2018

AGAINST THE ORDER/JUDGMENT IN OPGW 645/2015 of FAMILY COURT,
CHAVARA

PETITIONER/PETITIONER:

ANSAR,
AGED 41 YEARS
S/O.POOKUNJU, POTTANTAYYATHU KIZHAKKATHIL, PADA
NORTH, KARUNAGAPPALLY.

BY ADV. SRI.R.GOPAN

RESPONDENTS:
1 NADEERA,
AGED 31 YEARS
D/O.BASHEER KUTTY, MANAKKATTU PADEETTATHIL,
ARINALLOR, PADAPPANAL, THEVALAKKARA, KARUNAGAPPALLY
– 690515.
2 MUHAMMED RIFAN,
AGED 8 YEARS, (MINOR)
RESIDING AT MANAKKATTU PADEETTATHIL, ARINALLOR,
PADAPPANAL, THEVALAKKARA, KARUNAGAPPALLY – 690515.

3 AYISHA SUHANA,
AGED 6 YEARS, (MINOR) RESIDING AT MANAKKATTU
PADEETTATHIL, ARINALLOR, PADAPPANAL, THEVALAKKARA,
KARUNAGAPPALLY-690515.

RESPONDENTS 2 AND 3 REPRESENTED BY THEIR MOTHER
NADEERA, RESIDING AT MANAKKATTU PADEETTATHIL,
ARINALLOR, PADAPPANAL, THEVALAKKARA,
KARUNAGAPPALLY-690515.

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
15.1.2019, THE COURT ON 12.02.2019, PASSED THE FOLLOWING:
O.P.(FC) No.571/2018 2

C.R.

C.K.ABDUL REHIM

T.V.ANILKUMAR, JJ.
———————————
O.P.(FC)No.571 of 2018
———————————-
Dated this the 12th day of February, 2019

JUDGMENT

T.V.Anilkumar, J.

The petitioner, who filed this original petition invoking jurisdiction

of this court vested under Article 227 of the Constitution of India, is the

petitioner in OP.(GW) No.645/2015 on the files of the Family Court,

Chavara, filed for declaring him as guardian of the minor wards,

Muhammed Rifan and Aisha Suhana.

2. He obtained an interim order from the Family Court, Chavara

on I.A.No.1166/2017 on 19.9.2017 directing his wife, the respondent

herein, to handover custody of the two minor wards to him on every

2nd Saturday and succeeding Sunday, until further orders. None of the
O.P.(FC) No.571/2018 3

parties challenged the order before any superior forum and it became

final. The petitioner’s complaint is that, he was prevented by the

respondent from securing interim custody of the wards by her willful

act of disobeyance of the order. He therefore sought to enforce the

order through I.A.No.637/2018 before the court below by invoking

Order XXXIX of Rule 2-A of the Code of Civil Procedure (for short ‘the

Code’) to which no written objection seems to have been filed by the

respondent so far. It is alleged that, in spite of a series of postings,

the court below is reluctant to take up and dispose of

I.A.No.637/2018. The petitioner has, in the above circumstances,

approached this court seeking to issue a direction to the court below

for expeditious disposal of I.A.No.637/2018.

3. In the nature of the limited relief proposed to be granted to

the petitioner, we dispense with notice to the respondent. This court

had obtained a report called for from the learned Judge, Family

Court, Chavara, about the maximum time required for disposal of

I.A.No.637/2018.

4. The learned Judge has reported that, after giving to the

respondent a few postings for filing objections to I.A.No.637/2018,

she was always ready to dispose of the matter in accordance with law.
O.P.(FC) No.571/2018 4

But she was dissuaded from proceeding any further, since learned

counsel for the petitioner appearing in the court below reported that

the petitioner lost faith in the court. The learned Judge was also

informed that steps were being taken through this court for transfer of

the case from her court to another court. She therefore became

hesitant to proceed further with the case and was waiting for orders of

transfer from this court. The learned Judge in the report made a

request to this court to spare her from deciding the case so that

unfounded allegations, if any, against her in future could be obviated.

However, she conveyed her readiness to dispose of the O.P. within a

period of three months, if she is called upon by this court to take up

the matter.

5. When we put to the learned counsel for the petitioner

appearing in this O.P. the contents of the report sent by the learned

Judge, he submitted that the petitioner has not expressed loss of

confidence as alleged, but only keeps faith in the learned Judge. We

take on record the submission made by the learned counsel. He

persuaded us to issue necessary direction to the court below for

urgent disposal of I.A.637/2018 within a time frame to be fixed by this

court.

O.P.(FC) No.571/2018 5

6. Since the petitioner has expressed his continued faith in the

presiding officer, we are inclined to allow this O.P. and to direct the

court below to dispose of the I.A.No.637/2018 within three months

from the date of production of a copy of this judgment, as agreed

upon by the learned Judge. We would only normally have closed this

O.P. without proceeding any further but for the emergence of a new

situation of law calling for our immediate attention.

7. Evidently the request made by the petitioner in the

I.A.No.637/2018 is to initiate proceedings against the respondent

under Order XXXIX Rule 2-A of the Code and to prosecute her, the

mother of minor wards, for the alleged violation of order dated

19.9.2017. Order XXXIX Rule 2-A does not appear to us to provide

the petitioner with appropriate legal remedy for enforcing the

impugned order passed by the Family Court, Chavara under Section

12 (1) of the Guardians Wards Act 1890 (for short ‘the GW Act’).

8. Order XXXIX Rule 2-A reads thus;

2-A. Consequence of disobedience or breach of injunction–
(1) In the case of disobedience of any injunction granted or other order
made under rule 1 or rule 2 or breach of any of the terms on which the
injunction was granted or the order made, the Court granting the
injunction or making the order, or any Court to which the suit or
proceeding is transferred, may order the property of the person guilty of
such disobedience or breach to be attached, and may also order such
O.P.(FC) No.571/2018 6

person to be detained in the civil prison for a term not exceeding three
months, unless in the meantime the Court directs his release.

It is apparent from the above provision that orders of civil courts

under Order XXXIX and Rule 1 and 2 or other provisions of the Code,

if any alone are made enforceable under Order XXXIX Rule 2-A of the

Code. An order of a Family Court for the custody of minor children,

though being in the nature of a directive, and an interim order of

mandatory injunction, cannot be identified with an order passed by a

civil court in accordance with Order XXXIX Rules 1 and 2 or other

provisions of the Code. This is so, notwithstanding the fact that all

the provisions of the Code are also applicable to the Family Courts

subject to the restrictions under Section 10 (1) of the Family Courts

Act 1984 (for short ‘the FC Act’). Section 10 of the FC Act restricts

application of the provisions of the Code and also other laws to the

Family Courts in matters for which the FC Act and Rules framed

thereunder contain provisions. In the event of any inconsistency

between the provisions of the FC Act and other statues, Section 20 of

the FC Act mandates that the FC Act alone shall prevail.

9. In the case on hand, the impugned order of the Family Court

for custody of the wards was passed indisputably under Section 12 (1)
O.P.(FC) No.571/2018 7

of the Guardians and Ward Act, 1890 (for short the GW Act).

Section 12(1) of the Act reads as follows:

12. Power to make interlocutory order for production of minor and
interim protection of person and property.-(1) The Court may direct
that the person, if any, having the custody of the minor shall produce him
or cause him to be produced at such place and time and before such
person as it appoints, and may make such order for the temporary
custody of the person or property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to appear in
public, the direction under sub-section (1) for the production shall require
her to be produced in accordance with the customs and manners of the
country.

(3) Nothing in this Section shall authorise-

(a) the Court to place a female minor in the temporary custody of a
person claiming to be her guardian on the ground of his being her
husband, unless she is already in his custody with the consent of
her parents, if any, or

(b) any person to whom the temporary custody and protection of the
property of a minor is entrusted to dispossess otherwise than by
due course of law any person in possession of any of the

property.

Nowhere in the FC Act or Rules thereunder any specific provision

empowering the Family Courts to grant or refuse orders for interim

custody of minor children is seen incorporated. After the advent of the

FC Act, the Family Courts have exclusive jurisdiction to entertain and

decide matters relating to guardianship and custody of minor children,
O.P.(FC) No.571/2018 8

by virtue of powers conferred by Section 7 and 8 of the FC Act.

Section 7 of the FC Act enacts that the powers formerly exercised by

the District Court under the GW Act in relation to guardianship and

custody of minor wards shall stand transferred to the Family Courts,

on their establishment in the notified places. Indubitably, therefore,

the power to pass interim orders for custody of minor wards accrues

only to the Family Courts, by virtue of provisions in Section 12 of the

GW Act. In substance, the Family Courts called upon to issue orders

for interim custody are necessarily to trace its source of power to

Section 12 of the GW Act than elsewhere. No provision is made in

the FC Act or Rules prescribing the mode of enforcement of an order

passed under Section 12 (1) of the GW Act. When the FC Act is

silent, relevant provisions for enforcement of such orders shall

necessarily be traced from the GW Act itself. We, in this respect,

refer to Section 45 (1) (a) of the GW Act which reads as below:

45. Penalty for contumacy.- (1) In the following cases, namely-

(a) if a person having the custody of a minor fails to produce him or
cause him to be produced in compliance with a direction under Section
12, sub-section (1), or to do his utmost to compel the minor to return to
the custody of his guardian in obedience to an order under Section 25,
sub-section (1), or

(b) ————xxx———xxxx——–xxxx

(c) ————-xxxx———xxxx—–xxxx
O.P.(FC) No.571/2018 9

the person, guardian or representative, as the case may be, shall be
liable by order of the Court, to fine not exceeding one hundred rupees,
and in case of recusancy to further fine not exceeding ten rupees for
each day after the first during which the default continues, and not
exceeding five hundred rupees in the aggregate, and to detention in
the civil jail until he undertakes to produce the minor or cause him to
be produced, or to compel his return, or to deliver the statement or to
exhibit the accounts, or to pay the balance, or to deliver the property or

accounts, as the case may be.

Under Section 45(1), if the person in custody of the child disobeys the

order passed under Section 12 (1), he incurs the liability for payment

of prescribed amount of fine as well as detention in civil prison.

Unlike the Scheme of the Code dealing with execution of decrees and

orders of civil courts, Section 45(1) does not seem to limit the order of

detention to any specific period. The detention takes its course until

the child is produced or guardian in default undertakes to cause

production of the child in compliance with the order of the court. The

undertaking made by the recusant guardian, in our view, may be

accepted by the court only in a case where it is made with bona fide

intention to cause production of the child.

10. In this context, we would also like to observe that, orders of

fine and detention passed without notice to the respondent and
O.P.(FC) No.571/2018 10

minimal enquiry into the cause for non-production of child, would be

violative of principle of natural justice and therefore illegal. We are

also not forgetful of existence of a different but independent power

possessed by the Family Courts under Section 25 (2) of the GW Act

to cause arrest and production of the child through issue of search

warrant under Section 97 of the Code of Criminal Procedure, 1973

(Section 100 of old Code) in appropriate cases. But, such power

under Section 25 (2) of the GW Act is rarely exercised, but is

confined to limited situations arising under Section 25(1). Section 25

is an independent provision which can stand apart from Section 12(1).

These two provisions may overlap in certain cases. Section 25,

however, is no remedy for breach of orders passed under Section 12

(1) of the GW Act though the converse may be true.

11. Suffice it to say that Order XXXIX Rule 2-A of the Code was

misapplied to this case by the petitioner. The appropriate legal

remedy, in view of the foregoing discussion made by us, available to

the petitioner is contained only in Section 45 (1) of the GW Act.

In the result, we allow the O.P. directing the Family Court,

Chavara to take up I.A.No.637/2018 for urgent consideration and

dispose it of within a period of 3 months from the date of production of
O.P.(FC) No.571/2018 11

copy of this judgment. The court below will permit the petitioner to

make necessary amendments in I.A.No.637/2018 if he so desires.

Sd/-

C.K.ABDUL REHIM,
JUDGE

Sd/-

T.V.ANILKUMAR,
JUDGE

Al/-

O.P.(FC) No.571/2018 12

APPENDIX
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE O.P.(GW)NO.645/2015 FILED
BY THE PETITIONER BEFORE THE FAMILY COURT,
CHAVARA DATED 12.11.2015.

EXHIBIT P2 PHOTOCOPY OF I.A.NO.1166/2017 IN O.P.(GW)
NO.645/2015 FILED B Y THE PETITIONER BEFORE
THE FAMILY COURT, CHAVARA DATED 30.8.2017.

EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 19.9.2017 IN
I.A.NO.1166/2017 IN O.P.NO.645/2015 OF THE
FAMILY COURT, CHAVARA.

EXHIBIT P4 PHOTOCOPY OF THE *(I.A.NO.636/2018) IN O.P.

(GW)NO.645/2015 DATED 26.3.2018 OF THE
FAMILY COURT, CHAVARA.

EXHIBIT P5 PHOTOCOPY OF THE I.A.NO.636/2018 IN O.P.

(GW) NO.645/2015 DATED 26.3.2018 OF THE
FAMILY COURT, CHAVARA.

*I.A.NO.636/2018 IS CORRECTED AS I.A.NO.637/2018 VIDE ORDER DATED 10.12.2018 IN
I.A.NO.2/2018 IN O.P.(FC) 571/2018.

RESPONDENTS EXHIBITS : NIL

TRUE COPY

P.S TO JUDGE

AL/-

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