IN THE HIGH COURT OF KERALA AT ERNAKULAM
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
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.
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 :
O.P.(FC)No.29 of 2019
Dated this the 7th day of February, 2019
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
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
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.
OP (FC).No. 29 of 2019 : 6 :
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
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
P.A. To Judge