Indu V.R v. Bralvi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 O.P.(FC) NO. 688 OF 2022** **AGAINST THE ORDER DATED 02.07.2018 IN G.O.P.NO.486 OF 2017 ON THE FILES OF THE FAMILY COURT,THRISSUR** **PETITIONER:** **INDU V.R AGED 40 YEARS, D/O RAMANATHAN, VALIYAPARAMBIL HOUSE, NATTIKA P.O., CHAVAKKAD TALUK, THRISSUR, PIN – 680566.** **BY ADVS. P.T.MARY R.S.REJITHA BENRAJ K.R. ACHUTHAN K. NANDA SURENDRAN** ## **RESPONDENT:** **BRALVI** **AGED 51 YEARS, S/O LATE SREEDHARAN, CHANAYIL HOUSE, THIRUTHIKKADDESOM, PORKKULAM VILLAGE THALAPILLY TALUK, PIN – 650506.** **BY ADV RAJIT** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 23.01.2023, THE COURT ON 07.02.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.688 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner and the respondent are the parents of the child Rohan, aged 13 years. The respondent-father filed I.A.No.2 of 2022 in G.O.P.No.486 of 2017, which was already disposed of by the Family Court Thrissur, alleging that the petitioner disobeyed the directions in the order dated 02.07.2018 regarding interim custody of the child. As per the order dated 03.11.2022, Ext.P9, the Family Court found that the petitioner disobeyed the custody order and directed the petitioner to produce the child before the court for being handed over to the respondent. Holding that the petitioner disobeyed the said direction also, the Family Court as per Ext.P10 order directed the Station House Officer of the jurisdictional police station to cause production of the child before the court. The petitioner has filed this Original Petition under Article 227 of the Constitution of India seeking to set aside Exts.P9 and P10 orders. 3 O.P.(FC) No.688 of 2022 2. On 13.12.2022, notice was directed to be served on the respondent. Operation of Exts.P9 and P10 orders was stayed for a period of three weeks. The respondent entered appearance through his learned counsel. 3. In terms of the order of this Court dated 23.12.2022, the child was produced before this Court on 27.12.2022. Both parents were also present. Custody of the child was given to the respondent from 10.15 a.m. to 12.15 p.m. After interaction with the child and ascertaining his wishes, the petitioner was directed to hand over custody of the child to the respondent from 10.00 a.m. till 2.00 p.m. on 31.12.2022 at the Y-Mall, Thriprayar. 4. The petitioner has an allegation that the respondent is alcoholic and irresponsible. It is also alleged that he used to torture the petitioner as well as the child, and did not bother to look after their affairs. Stand of the respondent is that the petitioner is adamant and did not desire to have a peaceful matrimonial life. Such difference of opinion and disharmony in their relationship snowballed into 4 O.P.(FC) No.688 of 2022 filing of G.O.P.No.2023 of 2012 by the respondent. The disputes then existed were however sorted out and they started living together. Discord arose again and they started living separate. The respondent alleging that he was denied access to the child filed G.O.P.No.486 of 2017. That O.P. was contested and the order of the Family Court in the O.P. dated 02.07.2018 was challenged before this Court in Mat.Appeal No.192 of 2019. Ext.P4 is a copy of the judgment in that appeal. The directions regarding the custody of the child were modified. The directions of this Court contained in paragraph No.19 of Ext.P4 judgment read as follows:- “19. Accordingly, we allow this appeal in part by modifying the order of the Family Court with regard to the visitation rights of the appellant over the child. Accordingly, we order that the appellant shall have; visitation rights of the child from 10.00 a.m. on second Saturday of every month till 5.00 p.m. on the ensuing Sunday; interim custody of the child for five days during the child's school holidays during Onam and Christmas vacations; and interim custody of the child for ten days in April and May during the child's school summer vacation. The venue for the exchange of the interim custody of the child shall be at the 5 O.P.(FC) No.688 of 2022 Family Court, Thrissur. In addition to the above visitation rights, the appellant is granted contact rights with the child. The appellant shall be permitted by the respondent, to talk to the child over mobile phone on every Wednesday and Sunday for 5-10 minutes between 7.00 p.m and 9.00 p.m. Needless to state, in case of any change of circumstances, the parties are at liberty to move the Family Court to seek a modification of the visitation rights ordered in this judgment.” 5. The respondent alleges that the petitioner did not honour the aforesaid directions. That resulted in filing I.A.No.2 of 2022 in G.O.P.No.486 of 2017. Ext.P5 is a copy of the said petition. The petitioner has filed I.A.No.3 of 2022, copy of which is Ext.P7, seeking to modify the custody order. 6. After hearing both sides, the Family Court held that the petitioner disobeyed the order directing her to give interim custody of the child to the respondent. Ext.P9 order was accordingly passed and the petitioner was given another opportunity to produce the child before the court on the second Saturday of November, 2022. Since she did not obey or show any explanation, the Family Court on 14.11.2022, as 6 O.P.(FC) No.688 of 2022 per Ext.P10 order directed the S.H.O. of the local Police Station to cause production of the child. 7. The petitioner even after Ext.P10 order did not appear before the Family Court and produce the child. Instead, she filed this Original Petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 8. 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. 9. 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 superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the 7 ## O.P.(FC) No.688 of 2022 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. 10. 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 quasijudicial 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 High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High 8 O.P.(FC) No.688 of 2022 Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. 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 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. 11. 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 9 O.P.(FC) No.688 of 2022 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. 12. 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. 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. 13. In this Original Petition, the petitioner would contend that entrusting custody of the child with the 10 O.P.(FC) No.688 of 2022 respondent does not cater to the welfare of the child. But no immediate reason for non-production of the child before the court in terms of Ext.P9 order is stated. The direction of this Court in Ext.P4 judgment is to give interim custody to the respondent-father. After taking into account all aspects of the matter, including the welfare of the child, this Court held that interim custody of the child shall be given to the father on second Saturday and the ensuing Sunday. It is true that the petitioner has filed I.A.No.3 of 2022 seeking to modify the said order regarding interim custody. As long as the order is modified or altered, the petitioner is obliged to obey the said direction. She cannot maintain a view that the Family Court and the respondent, who is none other than the father of the child, would be blind in protecting the interest of the child. The petitioner disregarded the directions issued as per Ext.P9 order by the Family Court. She thereby flouted the lawful order of the court and tried to interfere with the process of law by filing this Original Petition. We deprecate the said approach of the petitioner. 11 O.P.(FC) No.688 of 2022 14. In terms of the order of this Court dated 27.12.2022, the interim custody of the child was given to the respondent from 10.00 a.m. till 2.00 p.m. on 31.12.2022 at the Y-Mall Thriprayar. The petitioner has no complaints against the respondent regarding such custody. It shows that the apprehension of the petitioner has no much basis. In such circumstances, we are of the view that there is no reason to interfere with Ext.P9 order. However, having the child been produced before this Court and the custody of the child was given to the respondent on 31.12.2022, intervention of the police for causing production of the child before the Family Court is unnecessary. Accordingly, we set aside Ext.P10 order. The matter is left to the Family Court, Thrissur to take appropriate decision in I.A.Nos.2 and 3 of 2022 in G.O.P.No.486 of 2017. The Original Petition is disposed of accordingly. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) No.688 of 2022 ## **APPENDIX OF OP (FC) 688/2022** ## **PETITIONER EXHIBITS** ## **EXHIBIT P1** **TRUE COPY OF THE GUARDIAN O.P. 486/2017 DATED 21.03.2017 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT THRISSUR** **EXHIBIT P2** - **TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN GUARDIAN O.P. 486/2017 DATED 20.07.2017 BY THE PETITIONER BEFORE THE FAMILY COURT, THRISSUR** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 02/07/2018 IN THE GUARDIAN O.P. 486/2017** **EXHIBIT P4 TRUE COPY OF THEJUDGMENT DATED 13/03/2020 OF THE HIGH COURT OF KERALA IN MAT APPEAL 192/2019** **EXHIBIT P5 TRUE COPY OF THE VIOLATION PETITION I.A. 2/2022 IN O.P. 486/2017 DATED 25.03.2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR** **EXHIBIT P6** **TRUE COPY OF THE OBJECTION IN I.A. 2/2022 IN O.P. 486/2017 DATED 20.05.2022 FILED BY THE PETITIONER IN O.P. 486/2017 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THRISSUR** **EXHIBIT P7** **TRUE COPY OF THE MODIFICATION PETITION I.A. 3/2022 IN O.P. 486/2017 DATED 13.05.2022 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THRISSUR** 13 ## O.P.(FC) No.688 of 2022 **EXHIBIT P8** ## **EXHIBIT P9** **EXHIBIT P10** **TRUE COPY OF THE OBJECTION IN I.A. 3/2022 IN O.P. 486/2017 DATED 19.05.2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR TRUE COPY OF THE ORDER IN I.A. 2/2022 DATED 3/11/2022 TRUE COPY OF THE ORDER IN I.A. 2/2022 DATED 14/11/2022**