Arafath Aboobacker v. Afreen Arafath

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 ``` ``` O.P.(FC) NO.581 OF 2022 ``` ``` CHALLENGING THE ORDER DATED 16.09.2022 IN I.A.NO.2 OF 2022 IN O.P.NO.25 OF 2021 ON THE FILES OF THE FAMILY COURT, KANNUR ``` ## **`PETITIONER:`** ``` ARAFATH ABOOBACKER, AGED 40 YEARS, S/O ABOOBACKER, PUTHIYAPURAYIL, ALEEMA GHAR, KODAPPARAMBA, P.O. KANNUR CITY, KANNUR, PIN - 670003 ``` ``` BY ADV K.RAJESH SUKUMARAN ``` ## **`RESPONDENT:`** ``` AFREENA ARAFATH, AGED 39 YEARS, W/O ARAFATH ABOOBACKER, RESIDING AT FANA, NEAR VICTORY SAW MILL, ANDATHODU, P.O. CHOVVA, KANNUR, PIN - 670006 ``` ``` BY ADVS. T.P.SAJID SHIFA LATHEEF(K/1347/2016) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(FC)No.581 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed O.P.No.25 of 2021 before the Family Court, Kannur against the respondent herein-wife for getting permanent custody of the minor child by, name, Aman Arafath, who is presently aged 7 years. In that original petition (Ext.P1), the respondent-mother filed Ext.P2 counter statement. She filed I.A.No.2 of 2022 for interim custody of minor child. In that original petition, the father filed an interlocutory application for interim custody, in which the Family Court passed an order, whereby the petitioner-father was granted only visitation right. In O.P.No.25 of 2021, the respondent-mother filed I.A.No.2 of 2022 seeking an order directing the petitioner-father to hand over all documents including the original Passport, Birth Certificate and Aadhar Card and other documents of the minor child and also the marriage certificate, on the ground that she has obtained a job abroad and is intending to go abroad with the child. In that interlocutory application, the petitioner-father filed Ext.P4 counter statement. After considering the rival contentions, the Family Court allowed that interlocutory application, by Ext.P5 order dated 16.09.2022, whereby the 3 O.P.(FC)No.581 of 2022 petitioner-father was directed to hand over the original Passport, Birth Certificate and Aadhar Card of the minor child and also the marriage certificate to the respondent-mother. Feeling aggrieved by that order, the petitioner-father is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 2. On 13.10.2022, when this original petition came up for admission, this Court issued notice on admission to the respondent. The learned counsel for the petitioner was permitted to take out notice to the respondent through her counsel before the Family Court, Kannur, where O.P.No.25 of 2021 is pending consideration. 3. Heard the learned counsel for the petitioner-father and also the learned counsel for the respondent-mother. 4. The issue that arises for consideration in this original petition is as to whether any interferences is warranted on Ext.P5 order dated 16.09.2022 of the Family Court, Kannur in I.A.No.2 of 2022, whereby, the petitioner-father has been directed to hand over the original Passport, Birth Certificate and Aadhar Card of the minor child and also the marriage certificate to the respondent-mother. 4 O.P.(FC)No.581 of 2022 5. The learned counsel for the petitioner-father would submit that since the intention of the respondent-mother to take the child abroad is evident from the affidavit filed in support of I.A.No.2 of 2022, the Family Court, Kannur ought to have dismissed that interlocutory application. 6. On the other hand, the learned counsel for the respondent-mother would submit that since the order of the Family Court granting visitation right to the petitioner-father is in force, the mother has absolutely no intention to take the child abroad, without obtaining necessary orders from the Family Court. 7. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 8. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of 5 O.P.(FC)No.581 of 2022 superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 9. In **Jai Singh v. Municipal Corporation of Delhi** **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all 6 O.P.(FC)No.581 of 2022 errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 10. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 11. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016** **(1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. 7 O.P.(FC)No.581 of 2022 Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 12. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower 8 O.P.(FC)No.581 of 2022 court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 13. Viewed in the light of the law laid down in the decisions referred to supra, we find no reason to interfere with Ext.P5 order dated 16.09.2022 of the Family Court in I.A.No.2 of 2022, whereby the petitioner-father has been directed to hand over the original Passport, Birth certificate and Aadhar Card of the minor child and also the marriage certificate to the respondent-mother. The reasoning of the Family Court in Ext.P5 order is neither perverse nor patently illegal. It cannot also be said that, while passing such an order, the Family Court has acted with material irregularity. 14. In such circumstances, especially when the stand taken by the respondent-mother before this Court is that she has absolutely no intention to take the child abroad, without obtaining necessary orders from the Family Court, we find no reason to interfere with Ext.P5 order, in this original petition. In the result, this original petition fails and the same is accordingly dismissed. 9 O.P.(FC)No.581 of 2022 The respondent-mother, within one week from this date shall file an affidavit before the Family Court, Kannur, undertaking that she will not take the child abroad without orders from the Family Court. While considering any application filed by the respondent-mother seeking permission to take the minor child abroad, the Family Court shall keep in mind that the paramount consideration of the court is the welfare of the minor child. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** Min 10 O.P.(FC)No.581 of 2022 ## **`APPENDIX OF OP (FC) 581/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 COPY OF THE OP 25/2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KANNUR ``` ``` Exhibit P2 COPY OF THE COUNTER STATEMENT FILED IN OP 25/2021 Exhibit P3 COPY OF THE IA 02/2022 FILED BY THE RESPONDENT ``` ``` Exhibit P4 COPY OF THE COUNTER STATEMENT IN IA 02/2022 ``` ``` Exhibit P5 CARBON COPY OF THE ORDER DATED 16.09.2022 IN IA 02/2022 IN OP 25/2021. ```