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Jerin Joy vs Lucy Simon on 7 February, 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

THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940

OP (FC).No. 29 of 2019

O.P.NO.694/2018 of FAMILY COURT, IRINJALAKUDA

PETITIONER/PETITIONER:

JERIN JOY,
AGED 36 YEARS,
S/O. JOY A.P, AYROOKARAN HOUSE, JUMUNA NAGAR,
KORATTY, KORATTY P.O., KORATTY KIZHAKKUMURY VILLAGE,
CHALAKUDY TALUK, THRISSUR DISTRICT, PIN – 680 308.

BY ADVS.
SMT.JEENA JOSEPH
SMT.V.J.SUMI LIZA
SRI.G.D.PANICKER

RESPONDENT/RESPONDENT:
LUCY SIMON,
AGED 35 YEARS,
D/O. SIMON JOHN, MULLAKKERI HOUSE, H.NO 50/438-A,
MYTHRI NAGAR, MANIMALA ROAD, EDAPILLY P.O.,
EDAPPILLY SOUTH VILLAGE, ERNAKULAM DISTRICT,
PIN 682 024.

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.02.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No. 29 of 2019 : 2 :

C.K.ABDUL REHIM

T.V.ANILKUMAR, JJ.
———————————
O.P.(FC)No.29 of 2019
———————————-
Dated this the 7th day of February, 2019

JUDGMENT

C.K.ABDUL REHIM, J.

Invoking the supervisory jurisdiction vested on this court under

Article 227 of the Constitution of India, the petitioner herein, who is

one among the petitioners in O.P.No.694/2018 on the files of the

Family Court, Irinjalakkuda, is seeking a direction to the respondent

herein to produce the minor child before this court for compliance of

the orders passed by the Family Court, in strict sense.

2. The petitioner along with his mother Smt.Rincy Joy had

filed O.P.No.694/2018 before the Family Court, Irinjalakkuda seeking

declaration of guardianship and permanent custody of the minor ward,

born out in the wedlock between the petitioner and the respondent,

namely Jiss Jerrin. It is contended before the Family Court that there

was an agreement arrived between the parties with respect to custody

of the minor child, on the basis of which divorce on mutual consent
OP (FC).No. 29 of 2019 : 3 :

was granted by the Family Court, Irinjalakkuda in O.P.No.235/2017.

But it is complained that, the terms of the agreement was violated by

the respondent herein, which only prompted the petitioner and his

mother to file the present O.P.No.694/2018. It is stated that, the

petitioner is employed abroad and he came down to Kerala on many

occasions to take interim custody of the child as agreed upon. But his

attempts failed because of the failure committed by the respondent.

The petitioner has got a further complaint that the respondent is not

looking after the welfare and interest of the minor ward in a proper

manner.

3. Since the original petition filed under the Guardian and

Wards Act is pending adjudication before the Family Court, this court

cannot usurp into the powers of that court, in exercise of the

supervisory jurisdiction vested under Article 227. Evidently, the

petitioner had filed I.A.No.2919/2018 before that court seeking interim

custody of the minor ward for few days from 24 th to 27th of October,

2018. But it is stated that the court below had failed to pass any

appropriate orders in the said application. Instead, the court below

had granted only one day’s overnight custody from 1.12.2018 to

2.12.2018.

OP (FC).No. 29 of 2019 : 4 :

4. When the matter came up for consideration, we directed

the Registry of this court to call for a report from the Family Court,

Irinjalakkuda. The learned Judge, Family Court, Thrissur, who is

holding full additional charge of the court at Irinjalakkuda, had

reported that I.A.No.2919/2018 is still pending. Since that court is

holding additional charge of the court at Irinjalakkuda, it had

expressed a hope that I.A.No.2919/2018 can be disposed of within a

period of two months.

5. In the factual scenario prevailing as mentioned above, we

are of the opinion that it is for the petitioner to approach the Family

Court with appropriate interim application for getting custody of the

child, for any specified days during when he will be available in

Kerala. It will be left open to the petitioner to file any fresh application,

if he is of the opinion that I.A.No.2919/2018 has become infructuous.

We are informed from the Registry that a new incumbent in the office

of the Family Court, Irinjalakkuda has already been appointed.

Therefore, interest of justice can be achieved by issuing a direction to

that court to consider and pass appropriate orders, if any interim

application is filed by the petitioner seeking custody of the minor ward

for any specified period, taking note of its urgency and to pass
OP (FC).No. 29 of 2019 : 5 :

appropriate orders after affording opportunity to both sides.

6. In the report of the learned Judge, it is also mentioned that

the respondent had raised a question of maintainability based on the

issue of the territorial jurisdiction. Needless to observe that it is for

that court to consider such objections if any, and to take appropriate

decision on the question of maintainability, before proceeding with

further steps in the matter.

Therefore the above original petition is hereby disposed of by

reserving liberty to the petitioner to approach the Family Court in any

appropriate interim application, mentioned as above. It is directed

that, the Family Court shall consider and dispose of any such

application, if any filed, without any further delay, taking note of the

observations contained hereinabove.

Sd/-

C.K.ABDUL REHIM
JUDGE
Sd/-

T.V.ANILKUMAR
JUDGE
Bb
OP (FC).No. 29 of 2019 : 6 :

APPENDIX

PETITIONER’S/S EXHIBITS:

EXT.P1 A PHOTOCOPY OF THE JOINT PETITION NO.

235/2017 DATED 20/3/2017

EXT.P2 PHOTOCOPY OF THE JUDGMENT IN OP NO.

235/2017 OF THE FAMILY COURT IRINJALAKKUDA
DATED 23-10-2017

EXT.P3 A PHOTOCOPY OF THE PETITION FILED BEFORE
THE PALARIVATTOM POLICE STATION

EXT.P4 A PHOTOCOPY OF THE PETITION FILED BEFORE
THE FAMILY COURT IRINJALAKUDA AS O.P.NO.
694/2018 UNDER GUARDIAN AND WARDS ACT.

EXT.P5 A PHOTOCOPY OF THE I.A.NO.2919/2018 IN
G.O.P.NO.694/2018

RESPONDENT’S EXHIBITS:

NIL

//True Copy//

P.A. To Judge

Bb

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