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E. Haris vs Shafeeque on 21 January, 2019

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

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