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Jiss Mary John vs Jiss Mary John on 6 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

WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940

OP (FC).No. 64 of 2019

AGAINST THE ORDER IN IA 695/2018 IN OP 11/2017 of FAMILY COURT,
MUVATTUPUZHA DATED 07-11-2018

PETITIONER/RESPONDENT:

JISS MARY JOHN
AGED 38 YEARS
D/O.T.K.YOHANNAN,THBALIKKATTU HOUSE,
ENANELLOOR(P.O),ENANELLOOR VILLAGE,
MUVATTUPUZHA TALUK.

BY ADVS.
SRI.MATHEW A KUZHALANADAN
SHRI.KURIAKOSE VARGHESE
SMT.ANITHA MATHAI MUTHIRENTHY
SRI.SUDEEP ARAVIND PANICKER
SRI.V.SHYAMOHAN

RESPONDENT/PETITIONER:
JOHN.P.VARGHESE
AGED 43 YEARS
S/O.P.T.GHEEVARGHESE,PLAVILAPUTHENVEEDU HOUSE,
KARICKOM(P.O),KARICKOM VILLAGE,KOTTARAKKARA TALUK,
KOLLAM DISTRICT,PIN-691531.

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06.02.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP(FC) 64/2019 2

JUDGMENT

C.K.Abdul Rehim, J.

In this original petition instituted under Article

227 of the Constitution of India, the respondent in

O.P.No.11/207 on the files of the Family Court,

Muvattupuzha is challenging an order passed by that

court in I.A.No.695/2018, through which that court had

negatived her contention with respect to

maintainability of the original petition filed therein.

2. The parties are spouses. The respondent/husband

filed O.P.No.11/2017 seeking declaration of

guardianship and permanent custody of the minor child

of the parties, namely, ‘Thanuja Elizabeth John’.

I.A.No.695/2018 was filed by the petitioner herein

seeking to decide the question of maintainability of

the original petition as a preliminary issue, based on

a contention that there was an earlier litigation

instituted at the instance of the respondent with

respect to custody of the minor child as

O.P.No.255/2016, in which a compromise was arrived

between the parties and the court below had passed a

decree in terms of the compromise. As per terms of
OP(FC) 64/2019 3

the compromise decree permanent custody of the minor

was already given to the petitioner herein and

arrangements for interim custody to the respondent was

also provided. It is stated that, the petitioner is

strictly abiding the terms of the decree which is still

in force. Therefore it is contended that, the present

original petition is not maintainable as hit by

principles of res judicata contemplated under Section

11 and the bar contained in Order II Rule 2 of the Code

of Civil Procedure. The respondent opposed the said

application through a detailed objections filed. The

court below, through a totally non speaking order,

dismissed I.A.No.695/2018 stating that; “heard and

dismissed”. The petitioner is challenging the said

order.

3. It is true that the order impugned does not

reflect any application of mind by the learned Judge of

the Family Court. Since the petitioner had raised a

preliminary issue on the question of maintainability,

the Family Court ought to have decided it through a

speaking order with proper reasoning mentioned therein.

In that respect we have to deprecate the manner in

which the learned Judge had dealt with the matter.

4. However, since we are exercising the
OP(FC) 64/2019 4

supervisory jurisdiction vested on this curt, it will

only be just and proper to look into the merits of the

issue an to take a decision on the issue, so that

multiplicity of proceedings can be avoided and precious

judicial time can be saved.

5. In paragraph 5 of O.P.No.11/2017 in para 5 the

respondent had mentioned about the earlier litigation

and about the compromise decree passed therein. In

paragraphs 6 to 10, elaborate contentions are raised to

the effect that the petitioner had failed to maintain

the minor ward properly in a manner protecting the best

interest and welfare of her. There is also an

allegation that she had entrusted custody of the child

with her parents, who are aged and suffering from

various old age diseases. It is also the contention

that the present custody of the child with the

petitioner herein or with her parents will ruin the

future of the child. Specific pleadings raised is that

the earlier judgment cannot be considered as final as

far as the custody of the minor ward is concerned. The

respondent had also relied on a decision of the Supreme

Court reported in 2000 (6) SCC 598 as well as a

judgment of this court reported in 2016 (1) KHC 1 (DB)

to support the proposition that any order passed with
OP(FC) 64/2019 5

respect to custody of a minor child can only be of

interlocutory in nature.

6. It is evident from the above narrated pleadings

that the respondent herein is putting forth a change in

the circumstances, which according to him, warrants the

institution of a fresh original petition. While

deciding the question of maintainability the court

cannot look into the veracity or correctness of such

pleadings. Of course, it is for the respondent to

contest the original petition and to substantiate that

those allegations are false or incorrect. The court has

to adjudicate it based on evidence and other materials

available, after conducting trial of the case. But at

this stage of the proceedings, the court below cannot

throw away the lis as one hit by the principle of res

judicata or as barred under Order II Rule 2 of the Code

of Civil Procedure. Those questions, at the

preliminary stage, can only be considered based on the

pleadings on record. Therefore,we are of the considered

opinion that the pleadings contained in O.P.No.11/2017

will entail the respondent herein to maintain an

original petition under the Guardian and Wards Act.

Hence, the dispute regarding maintainability raised in

I.A.No.695/2018 cannot be sustained.
OP(FC) 64/2019 6

7. In view of the findings arrived as above, we

are declining interference with the order impugned

herein passed by the Family Court in I.A.No.695/2018 in

O.P.No.11/2017, even though the order suffers from the

infirmities noted by this court in the earlier

paragraphs.

Consequently, the original petition fails and

the same is hereby dismissed. Since it is submitted

by the learned counsel for the petitioner that

O.P.No.11/2017 is ripe for trial, the Family Court,

Muvattupuzha is directed to take all earnest efforts

for an early disposal of the case, at any rate, within

a period of six months from the date of production of a

certified coy of this judgment.

Sd/-

C.K.Abdul Rehim, Judge

sd/-

T.V.Anilkumar, Judge

kav/
OP(FC) 64/2019 7

APPENDIX
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT AND DECREE IN
O.P.NO.255/2016 DATED 14/06/2016

EXHIBIT P2 TRUE COPY OF THE EXTRACTS OF THE
COUNSELLOR’S REGISTER FROM 17/09/2016
TO 02/06/2018.

EXHIBIT P3 TRUE COPY OF THE O.P.(G)11/2017 FILED
BY THE RESPONDENT HERE ON 10/01/2017.

EXHIBIT P3 A A TRUE COPY OF THE OBJECTION FILED BY
THE PETITIONER HEREIN TO THE GOP
NO.11/2017.

EXHIBIT P4 TRUE COPY OF I.A.695/2018 FILED BEFORE
THE HON’BLE FAMILY COURT AT
MUVATTUPUZHA ON 07/06/2016

EXHIBIT P5 TRUE COPY OF OBJECTION TO THE
I.A.NO.695/2018

EXHIBIT P6 TRUE COPY OF THE ORDER IN
I.A.NO.695/2017 DATED 07/11/2018.

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