IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940
O.P(FC).No. 39 of 2019
OP(GW)NO.1738/2018 of FAMILY COURT,KOLLAM
PETITIONER:
1 E. HARIS,
AGED 53 YEARS,
S/O.IBRAHIM KUNJU, DARULSALAM, UMAYENALLOOR ESTATE,
PERAYAM, THAZHUTHALAI VILLAGE, KOLLAM.
2 VAHEEDA, AGED 50 YEARS,
W/O.HARIS,
DARULSALAM, PERAYAM, THAZHUTHALAI VILLAGE, KOLLAM
BY ADV. S SREEKUMAR(KOLLAM)
RESPONDENT:
SHAFEEQUE,
AGED 30 YEARS,
S/O.SHAREEF, SAJU MANZIL, SNEHADARA NAGAR-239,
ERAVIPURAM.P.O., KOLLAM-691011.
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21.01.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(FC).No. 39 of 2019 : 2 :
JUDGMENT
C.K.ABDUL REHIM, J.
Invoking the jurisdiction vested on this court under Article 227 of
the Constitution of India, the petitioners have filed the above original
petition seeking the reliefs as follows;
i. To stay Exhibit-P4 Inter locutory
application in I.A.No.4166/2018 in O.P.
(GW) No.1738/2018 pending before the
Family Court, Kollam till the final
disposal of the Exhibit-P1 case.
ii. To direct the Family Court, Kollam to
dispose of Exhibit-P4 petition on merit
expeditiously and within a reasonable
time that this Hon’ble Court may consider
appropriate, pending consideration of the
said applications to keep in abeyance all
further proceedings in Exhibit P3 and P4
proceedings.
iii.Issue such other Order or Direction that
this Honorable Court may deem fit and
O.P(FC).No. 39 of 2019 : 3 :
proper in the nature and circumstances of
the case.”
2. It is stated that the respondent herein had filed an original
petition before the Family Court, Kollam as O.P.(GW)No.1738/2018,
under the Guardians and Wards Act, seeking permanent custody of
his minor child, namely Mohammed Farhan Shafeeque, by impleading
the petitioners herein, who are the maternal grand parents of the
minor child, as respondents. It is stated that the mother of the child,
who was the wife of the respondent herein, had committed suicide on
26.11.2018, with respect to which the police had registered Ext.P1
case, under Section 174 Cr.P.C. It is stated that, on the basis of
statement given by the minor child, the case was altered to one
punishable for offence under Sections 306 and 498A of Indian Penal
Code.
3. Along with the original petition filed by the respondent
before the Family Court, the respondent had filed I.A.No.4166/2018
seeking interim custody of the minor child, as per Ext.P4. The
petitioners herein points out that, consequent to the suicide committed
by the mother of the minor child, the child was given counselling by
the ‘Child-line Authorities’ and he was produced before the Child
O.P(FC).No. 39 of 2019 : 4 :
Welfare Committee, Kollam District. As per Ext.P2 proceedings, the
Child Welfare Committee had given custody of the minor child to the
petitioners.
4. Contention now raised by the petitioners is that, in view of
the order passed by the Child Welfare Committee giving custody of
the minor child to the petitioners and in view of the fact that the police
is investigating on Ext.P1 Crime, the application for interim custody
filed by the respondent ought not have been entertained by the Family
Court. It is on that premise the petitioners are seeking to stay the
interlocutory application, I.A.No.4166/2018 pending before the Family
Court in O.P.(GW) No.1738/2018. But at the same time, the second
relief sought for by the petitioner is for a direction to the Family Court
to dispose of the above said interlocutory application expeditiously,
within a time frame to be fixed by this court.
5. We are of the considered opinion that, question regarding
entrustment of custody of the minor child is now pending adjudication
before the Family Court. The Family Court is also considering the
relief sought for by the respondent for giving interim custody of the
child to him, pending adjudication of the original petition. We do not
O.P(FC).No. 39 of 2019 : 5 :
find any ground to hold that the interim application is not maintainable
before the Family Court. It is for the petitioners to approach the
Family Court and to file objections to I.A.No.4166/2018, by taking all
available contentions and by producing all supporting materials. It is
for the Family Court to take an appropriate decision in
I.A.No.4166/2018. After considering the entire circumstances and on
appreciating the materials available on record, this court is of the
opinion that it is not proper for this court to usurp into the jurisdiction
of the Family Court and to take any decision on the question of interim
custody of the child. It is also not proper to pass any orders based on
an anticipation that the said court may pass any orders adverse to the
interest of the petitioners herein. We do not also find any materials to
stay the consideration of I.A.No.4166/2018 by the Family Court.
Under the above mentioned circumstances, the above original
petition fails and the same is hereby dismissed by reserving liberty to
the petitioners to take all available contentions before the Family
Court, against I.A.No.4166/2018. Needless to observe that it is for the
Family Court to consider all such objections and materials if any
produced and to take an appropriate decision in the application filed
O.P(FC).No. 39 of 2019 : 6 :
by the respondent seeking interim custody of the child, pending
disposal of the original petition before that court.
Sd/-
C.K.ABDUL REHIM
JUDGE
Sd/-
T.V.ANILKUMAR
JUDGE
Bb
O.P(FC).No. 39 of 2019 : 7 :
APPENDIX
PETITIONER’S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE F.I.R. IN CRIME
NO.1058/2018, DATED 26/11/2018.
EXHIBIT P2 THE TRUE COPY OF THE PROCEEDINGS ISSUED BY
THE CHAIR PERSON CHILD WELFARE COMMITTEE,
KOLLAM.
EXHIBIT P3 THE TRUE COPY OF THE PETITION IN O.P(G W)
NO.1738/2018.
EXHIBIT P4 THE TRUE COPY OF THE I.A.NO.4166/2018 IN
O.P.(G W) NO.1738/2018 OF THE FAMILY
COURT, KOLLAM.
RESPONDENT’S EXHIBITS:
NIL
//True Copy//
P.A. To Judge
Bb