Liyakathali K. P. v. Shibina

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023/5TH MAGHA, 1944 ``` ``` OP (FC) NO. 733 OF 2022 ``` ``` AGAINST THE COMMON ORDER DATED 13.12.2022 IN I.A.NOS.2, 3 AND 4 OF 2022 IN O.P.NO 1336 OF 2022 OF THE FAMILY COURT, MALAPPURAM ``` ## **`PETITIONER/RESPONDENT:`** ``` LIYAKATHALI K. P.,AGED 39 YEARS, S/O. ALI K P, KIZHAKKUMPARAMBIL-HOUSE, KAVALANGADU, N.S.S. COLLEGE-POST, MANJERI- AMSOM/DESOM, ERNAD-TALUK, MALAPPURAM-DIST., PIN - 676122 ``` ``` BY ADVS.T.M.RAMAN KARTHA SYAMA MOHAN(K/262/2013) VIDYESWARI V.(K/000669/2022) REVATHY M.A.(K/001160/2022) GREESHMA T.G.(K/002281/2022) ``` ## **`RESPONDENT/PETITIONER:`** ``` SHIBINA, AGED 31 YEARS, OCC:HOUSE WIFE, D/O MUHAMMADALI, OTTAKALLAN-HOUSE, EDATHUNATTKARA-AMSAM/DESAM, EDATHUNATTKARA-POST, MANNARKADU-TALUK, PALAKKAD-DISTRICT., PIN - 678601 ``` ``` BY ADVS.C.DINESH RESHMI VIJU(K/2656/2021) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- O.P.(FC)No.733 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the respondent in O.P.No.1336 of 2022, which is an original petition filed by the respondent hereinmother before the Family Court, Malappuram, under Sections 10 and 25 of the Guardians and Wards Act, 1890, seeking permanent custody of the minor children. In that original petition, the respondent-mother filed I.A.No.2 of 2022 seeking injunction against the forceful removal of the younger child Jumana Liyakath from her custody by the petitioner-father. The respondent-mother has also filed I.A.No.3 of 2022 for custody of the elder child Nishwa Liyakath. The petitionerfather filed I.A.No.4 of 2022 seeking custody of the younger child. After considering the rival contentions, the Family Court, by Ext.P1 common order dated 13.12.2022, disposed of those interlocutory applications. The operative portion of the said order reads thus; “Both children named Nishwa Liyakath and Jumana Liyakath shall remain with the original petitionermother. The original petitioner shall admit the children in M.E.S. English Medium School, Edathanattukkara, which is the school nearest to her -3- O.P.(FC)No.733 of 2022 residence. The respondent-father shall bear all the expenses for education of the children and shall accompany the mother to the said school for admission on 15.12.2022. The respondent-father shall bear all educational expenses of the children. The respondent-father is restrained from forcefully removing the children from the custody of the original petitioner. The children shall remain in the custody of the original petitioner. The original petitioner shall handover both children to the respondents at 9.00 A.M. at her residence on every Sunday and the respondent-father shall return the children by 5.30 P.M to the petitioner on the said day.” 2. Challenging Ext.P1 common order dated 13.12.2022 of the Family Court, Malappuram in I.A.Nos.2, 3 and 4 of 2022 in O.P.No.1336 of 2022, the petitioner-father is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. On 05.01.2023, when this original petition came up for admission, the respondent entered appearance through counsel. By the order dated 05.01.2023, both parties were directed to appear before this Court on 17.01.2023 at 10.15 a.m., along with the minor children. -4- O.P.(FC)No.733 of 2022 4. On 17.01.2023, when this original petition came up for consideration at 10.15 a.m, in terms of the order of this Court dated 05.01.2023, both parties were personally present in Court along with the minor children. After interacting with the parties and also the minor children, this Court directed them to appear before the Family Counselling Centre under the Kerala High Court Legal Services Committee at 11.30 a.m. and the matter was ordered to be listed on that day itself at 3.30 p.m., for the report of the Counsellor. 5. When this matter was taken up again in the afternoon session of 17.01.2023, this Court passed the following order; “In terms of the order of this Court dated 05.01.2023, both parties are personally present in Court along with the minor children. They were directed to appear before the Family Counselling Centre under the Kerala High Court Legal Services Committee today at 11.30 a.m. 2. When this matter is taken up again at 3.30. p.m., we have again interacted with the parties. We have also perused the report of the Family Counsellor. 3. The learned counsel for the petitioner, after arguing for some time, seeks time to place on record certain documents including copy of the interlocutory applications, counter, etc. -5- O.P.(FC)No.733 of 2022 4. We notice that the copy of O.P.No.1336 of 2022, I.A.Nos.2, 3 and 4 of 2022 and the objections/counter filed in that original petition and interlocutory applications are not produced along with the original petition. 5. Registrar (Judicial) to get an explanation from the concerned Filing Scrutiny Officer, who has numbered this original petition showing scant regard to the directions issued by this Court in the order dated 30.09.2022 in O.P.(FC)No.318 of 2022. Paragraphs 2 and 3 of the said order read thus; “2. When an original petition is filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India challenging an order passed by the Family Court on an interlocutory application, a copy of the original petition and the said interlocutory application along with copy of the counter, if any, filed in that original petition and interlocutory application shall be produced as exhibits before this Court. 3. Registry shall ensure compliance of the above direction. Registrar (Judicial) to issue necessary instructions in this regard.” 6. The personal presence of the parties is dispensed with.” 6. On 21.01.2023, the petitioner has filed I.A.No.1 of 2023 seeking an order to accept a copy of O.P.No.1336 of 2022 and other documents as Exts.P2 to P13, which is allowed by a separate order of this date. -6- O.P.(FC)No.733 of 2022 7. Heard the learned counsel for the petitioner-father and also the learned counsel for the respondent-mother. 8. The learned counsel for the petitioner-father would contend that since the father is having financial capacity to provide decent accommodation, good food and quality education to his children, the Family Court went wrong in granting interim custody of the minor children to the respondent-mother and permitting her to admit the children in M.E.S. English Medium School, Edathanattukkara. 9. On the other hand, the learned counsel for the respondent-mother would contend that the order passed by the Family Court granting interim custody of the minor children to the respondent-mother, with permission to admit them in an English Medium School nearest to her residence is perfectly legal, which warrants no interference in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. The learned counsel would submit that the respondent-mother and her minor children cannot be forced to live in the place where the petitionerfather is living three wives in three different houses. 10. During the course of arguments, the learned -7- ## O.P.(FC)No.733 of 2022 counsel on both sides have raised various contentions touching the merits of the matter pending adjudication before the Family Court in O.P.No.1336 of 2022. We do not propose to consider such contentions in this original petition, since the challenge made in this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India is on the legality or otherwise of the order dated 13.12.2022 of the Family Court granting interim custody of the minor children to the respondent-mother. 11. On 17.01.2023, we have interacted with the minor children and their parents, who were personally present in Court. Thereafter, all of them appeared before the Family Counselling Centre under the Kerala High Court Legal Services Committee, at 11.30 a.m. On 17.01.2023 at 3.30 p.m., we have perused the report of the Family Counsellor and then interacted again with the minor children and their parents. The children have expressed their desire to continue education in M.E.S. English Medium School, Edathanattukkara, which is the school nearest to their maternal home. The respondent-mother has also expressed her desire to continue in her parental home along with the minor children. On the -8- O.P.(FC)No.733 of 2022 other hand, the petitioner-father would insist that his wife and children should reside at the place where he is living with his three wives in three different houses. He would also insist that the children should study in the school suggested by him. 12. Having considered the materials on record and also the submissions made by the learned counsel on both sides, we find no illegality in the decision taken by the Family Court in the impugned order dated 13.12.2022, permitting the respondent-mother to have interim custody of the minor children and to admit them in M.E.S. English Medium School, Edathanattukkara, which is the school nearest to her residence. 13. During the course of arguments, the learned counsel for the petitioner-father raised certain contentions with reference to the allegations contained in paragraph 12 of the affidavit filed in support of Ext.P12 interlocutory application. A reading of the impugned dated 13.12.2022 would not show that such a contention was raised before the Family Court, at the time of consideration of the application for interim custody. Though such allegations are raised in paragraph 6 of this original petition, the petitioner-father has -9- O.P.(FC)No.733 of 2022 no case that while passing the impugned order, the Family Court omitted to consider such a contention raised before it. At any rate, such a contention cannot be raised in an original petition filed under Article 227 of the Constitution of India, instead of filing an application for review, on permissible grounds. ## 14. In **Yashita Sahu v. State of Rajasthan [(2020)** **3 SCC 67]** the Apex Court held that law is well settled by a catena of judgments that, while deciding matters of custody of a child, primary and paramount consideration is the welfare of the child. If the welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to custody of the child. The court must therefore be -10- O.P.(FC)No.733 of 2022 very wary of what is said by each of the spouses. 15. In **Yashita Sahu** (supra) the Apex Court noticed that a child, especially a child of tender years requires the love, affection, company, and protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation and every re-union may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be -11- O.P.(FC)No.733 of 2022 denied any visitation rights or contact with the child. Courts dealing with custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights. A child has a human right to have the love and affection of both parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents. 16. In **Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476]** the Apex Court held that, whenever the court disturbs the custody of one parent, unless there are compelling reasons, the court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. In view of the settled legal position, the welfare of the minor being the paramount consideration, the court cannot act upon the suggestions of Mr. John Ekelaar in his Article. The court cannot accept the submission that, while applying the welfare -12- O.P.(FC)No.733 of 2022 principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents” 17. The decision in **Vasudha Sethi** (supra) was not regarding a post-decree scenario. But when interim custody of a child is the question, the same principle applies equally to the post-decree stage also. In view of the principles laid down in **Yashita Sahu** and **Vasudha Sethi** referred to supra, we are of the view that the wish of the child has to be taken into account before ordering interim custody of the child. 18. The impugned order of the Family Court granting interim custody of the minor children to the respondentmother with visitation right to the petitioner-father cannot be said to be one passed contrary to the law laid down by the Apex Court in the decisions referred to supra. 19. 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 -13- O.P.(FC)No.733 of 2022 jurisdiction. ## 20. 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 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. ## 21. 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 -14- O.P.(FC)No.733 of 2022 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 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. 22. 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. 23. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016** - **(1) KHC 1]** a Division Bench of this Court held that, the law -15- O.P.(FC)No.733 of 2022 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. 24. 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 -16- O.P.(FC)No.733 of 2022 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 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. 25. Viewed in the light of the law laid down in the decisions referred to supra, we find no reason to interfere with the impugned order dated 13.12.2022 of the Family Court in I.A.Nos.2, 3 and 4 of 2022 in O.P.No.1336 of 2022. In the result, this original petition fails and the same is accordingly, dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/28/1 -17- O.P.(FC)No.733 of 2022 ## **`APPENDIX OF OP (FC) 733/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 TRUE COPY OF THE COMMON ORDER IN I.A. NO. 02/2022, 03/2022 AND 04/2022 DATED 13/12/2022 IN OP NO. 1336/2022 WHICH PASSED BY LD. FAMILY COURT AT MALAPPURAM ``` ``` Exhibit P2 TRUE COPY OF O.P. NO. 1336/2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, MALAPPURAM ``` ``` Exhibit P3 TRUE COPY OF COUNTER FILED BY THE PETITIONER IN O.P. NO. 1336/2022 ``` ``` Exhibit P4 TRUE COPY OF COUNTER CLAIM FILED BY THE PETITIONER IN O.P. NO. 1336/2022 ``` - **`Exhibit P5 TRUE COPY OF I.A. NO. 2/2022 FILED BY THE RESPONDENT IN O.P. NO. 1336/2022`** ``` Exhibit P6 TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN I.A. NO. 2/2022 ``` - **`Exhibit P7 TRUE COPY OF I.A. NO. 3/2022 FILED BY THE RESPONDENT SEEKING INTERIM CUSTODY OF THE ELDER DAUGHTER`** ``` Exhibit P8 TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN I.A. NO. 3/2022 ``` ``` Exhibit P9 TRUE COPY OF THE LETTER DATED 11.10.2022 ISSUED TO PETITIONER FROM THE IQRA ISLAMIC SCHOOL REGARDING THE ABSENCE OF THE CHILDREN FROM SCHOOL FROM 29.9.2022 ``` ``` Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 20.10.2022 IN W.P.(CRL) NO. 966/2022 OF THIS HON'BLE COURT ``` -18- ## O.P.(FC)No.733 of 2022 ``` Exhibit P11 ``` ``` TRUE COPY OF O.P. NO. 1271/2022 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, MALAPPURAM ``` ``` Exhibit P12 TRUE COPY OF I.A. NO. 1/2022 FILED BY PETITIONER IN O.P. NO. 1271/2022 BEFORE THE FAMILY COURT, MALAPPURAM ``` ``` Exhibit P13 TRUE COPY OF LETTER DATED 16.12.2022 OF THE PRINCIPAL OF BENCHMARKS INTERNATIONAL SCHOOL INTIMATING THAT THE ELDER DAUGHTER IS ABSENT WITH EFFECT FROM 6.12.2022 ```