Meena Cherian v. Reji M. Eason & Geetha Cheriyan

# **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 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA,** ## **1944** ## **O.P.(FC)NO.723 OF 2022** **AGAINST THE ORDER/JUDGMENT DATED 28.03.2022 IN I.A.NO.11 OF 2021 IN O.P.(GW) NO.418 OF 2021 OF THE FAMILY COURT, KOLLAM** ## **PETITIONER/PETITIONER:** **MEENA CHERIAN, AGED 52 YEARS D/O. J.CHERIYAN MANAPOYKAYIL VEEDU, PADAPPAKKARA PERAYAM, MULAVANA VILLAGE, KOLLAM, PIN - 691503** **BY ADVS. JOHNSON GOMEZ S.BIJU (KIZHAKKANELA) SANJAY JOHNSON JOHN GOMEZ ARUN JOHNY** ## **RESPONDENTS/RESPONDENTS:** **1 REJI M. EASON, AGED 55 YEARS, S/O A.E EASO MARUTHOOR HOUSE, KUMBAZHA P.O. PATHANAMTHITTA TALUK, PATHANAMTHITTA PIN 689653. NOW RESIDING AT 42, SILENT CIRCLE DRIVE, SUGAR LAND, TEXAS STATE, U.S.A ZIP CODE 77498 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR. E.I.JOSEPH,S/O G.IDICHERIA RESIDING AT EDATHARAYIL HOUSE KUMBAZHA P.O PATHANAMTHITTA, PIN – 689653** **2 GEETHA CHERIYAN, AGED 49 YEARS, D.O. STELLAMA SANGEETHAM, NAMBARATHUMUKKU, THRIKKADAVOOR VILLAGE, KOLLAM TALUK, PIN - 691601** OP(FC) No.723 of 2022 2 **R1 BY ADV.AJIT JOY, R2 BY ADV.SAJU J PANICKER** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(FC) No.723 of 2022 3 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner, who filed O.P.(GW) No.418 of 2021 before the Family Court, Kollam, seeking permanent custody of the minor child, is before this Court in this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P9 order dated 28.03.2022 of the Family Court in I.A.No.11 of 2021 in O.P.(GW) No.418 of 2021 and to allow the said interlocutory application, i.e., Ext.P7 interlocutory application, which was one filed seeking an order directing the respondents herein to produce the minor child before the court, in order to ascertain her present physical condition and mental status through a board consisting of a team of competent doctors. The petitioner has also sought for an order directing the Family Court, Kollam to consider Exts.P11 and P13 interlocutory applications within a time frame to be fixed by this Court. The petitioner filed Ext.P11 interlocutory application, i.e., I.A.No.18 of 2022, seeking interim relief similar to that sought for in I.A.No.11 of 2021 and Ext.P13 interlocutory application, i.e., I.A.No.19 of 2022, seeking an order directing the service provider of the mobile number of the minor ward to provide a certificate before the OP(FC) No.723 of 2022 4 Family Court revealing the exact location of the mobile phone on 07.03.2022, the date on which the Family Court interacted with the minor child over the mobile phone. The 1[st] respondent filed Ext.P8 objections to Ext.P7 interlocutory application. Pursuant to the direction contained in the judgment of this Court dated 03.03.2022 in Mat.Appeal No.126 of 2022, the Family Court interacted with the child through online mode, on 07.03.2022, to ascertain her wish. After considering the rival contentions, the Family Court rejected Ext.P7 interlocutory application, i.e., I.A.No.11 of 2021 in O.P.(GW) No.418 of 2021 by Ext.P9 order dated 28.03.2022. Feeling aggrieved, the petitioner-mother is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. On 27.12.2022, when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondents by speed post. 5. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and the learned counsel for the 2[nd] respondent. 6. The issue that arises for consideration in this original petition is as to whether any interference is required on Ext.P9 OP(FC) No.723 of 2022 5 order dated 28.03.2022 of the Family Court, Kollam, whereby Ext.P7 interlocutory application, i.e., I.A.No.11 of 2021 in O.P. (GW) No.418 of 2021, stands rejected for the reason stated therein. 7. The learned counsel for the petitioner-mother would contend that Ext.P9 order of the Family Court, Kollam is per se arbitrary and illegal, which warrants interference in this original petition. Per contra, the learned counsel for the 1[st] respondent would contend that the Family Court rightly rejected Ext.P7 interlocutory application, stating valid reasons in Ext.P9 order, which requires no interference in this original petition. 8. The petitioner-mother filed Ext.P7 interlocutory application seeking an order directing the respondents to produce the minor child aged 17 years before the Family Court, in order to ascertain her present physical condition and mental status through a board consisting of a team of competent doctors. The 1[st] respondent-father opposed the relief sought for in Ext.P7 interlocutory application by filing Ext.P8 objections. The Family Court interacted with the child through online mode, on 07.03.2022, to ascertain her wish, pursuant to the direction contained in the judgment of this Court dated 03.03.2022 in Mat.Appeal No.126 of 2022. In Ext.P9 order dated 28.03.2022 OP(FC) No.723 of 2022 6 in I.A.No.11 of 2021 in O.P.(GW) No.418 of 2021, the Family Court found that the minor child is safe in USA along with her father and her sister. She is doing her education there peacefully. The Family Court considered various aspects in detail in paragraph 12 of Ext.P9 order, in order to arrive at a conclusion that, bringing the minor child to India will affect her safety and security and her interim custody cannot be given to the petitioner-mother. Though the Family Court dismissed Ext.P7 interlocutory application, the petitioner-mother is permitted to continue to chat with the minor child for 10 minutes every day, at the convenience of the minor, subject to the condition stipulated in paragraph 14 of Ext.P9 order. The reasoning of the Family Court in Ext.P9 order for rejecting Ext.P7 interlocutory application filed by the petitioner-mother is neither perverse nor patently illegal and it cannot also be said that while passing such an order, the Family Court has committed any material irregularity. 9. 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 OP(FC) No.723 of 2022 7 jurisdiction. 10. 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. 11. 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 OP(FC) No.723 of 2022 8 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. 12. 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. 13. 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 OP(FC) No.723 of 2022 9 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. 14. 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 court or tribunal is in direct conflict with OP(FC) No.723 of 2022 10 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. 15. Viewed in the light of the law laid down in the decisions referred to supra, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, this Court is not sitting in appeal over Ext.P9 decision taken by the Family Court in Ext.P7 interlocutory application. As already noticed, the reasoning of the Family Court in Ext.P9 order for rejecting Ext.P7 interlocutory application filed by the petitionermother is neither perverse nor patently illegal and it cannot also be said that while passing such an order, the Family Court has committed any material irregularity, warranting interference of this Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, this original petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** jg OP(FC) No.723 of 2022 11 ## **APPENDIX OF OP (FC) 723/2022** PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF THE O.P(G&W) NO. 418/| |---|---| ||2021 FILED BY THE PETITIONER BEFORE THE| ||HON'BLE FAMILY COURT KOLLAM| |Exhibit P2|A TRUE COPY ORDER NO. CWC/KLM/7815/21| ||DATED 23/02/2021 PASSED BY THE CHILD| ||WELFARE COMMITTEE KOLLAM| |Exhibit P3|A TRUE COPY OF THE ORDER NO.| ||CWC/KLM/7815/21 DATED 12/07/2021 PASSED| ||BY CHILD WELFARE COMMITTEE KOLLAM| |Exhibit P4|A TRUE COPY OF THE OBJECTION DATED| ||23/07/2021 FILED BY THE RESPONDENT NO. 1| ||TO EXT P1 ORIGINAL PETITION| |Exhibit P5|A TRUE COPY OF THE ORDER DATED| ||10/12/2021 IN IA NO 14/2021 IN OP(G&W)| ||NO. 418/2021| |Exhibit P6|A TRUE COPY OF THE JUDGEMENT DATED| ||3/3/2022 IN MAT APPEAL NO. 126/2022| ||BEFORE THIS HON'BLE COURT| |Exhibit P7|A TRUE COPY OF I.A NO. 11/2021 IN O.P| ||(G&W) 418/2021 FILED BY THE PETITIONER| ||BEFORE THE FAMILY COURT KOLLAM| |Exhibit P8|A TRUE COPY OF THE OBJECTION FILED BY| ||THE RESPONDENT NO.1 TO I.A NO. 11/2021| ||IN O.P (G&W) NO.418/2021, BEFORE THE| ||FAMILY COURT KOLLAM| |Exhibit P9|CERTIFIED COPY OF ORDER DATED 28.03.2022| ||IN I.A.NO.11 OF 2021 IN O.P.(GW) NO.418| ||OF 2021 OF THE FAMILY COURT, KOLLAM| |Exhibit P10|A TRUE COPY OF THE IA NO. 13 OF 2021 IN| ||O.P (G&W) 418/2021 FILED BY THE| ||PETITIONER BEFORE THE FAMILY COURT| ||KOLLAM| |Exhibit P11|A TRUE COPY OF I.A NO.18 /22 IN O.P| ||(G&W) NO.418/2021 FILED BY THE| ||PETITIONER| |Exhibit P12|A TRUE COPY OF OBJECTION IN I.A| ||NO.18/2022 FILED BY THE RESPONDENT| |Exhibit P13|A TRUE COPY OF THE I.A NO.19/2022 IN O.P| ||(G&W) NO. 418/2021 FILED BY THE| ||PETITIONER BEFORE THE HON'BLE FAMILY| ||COURT KOLLAM| |Exhibit P14|A TRUE COPY OF THE OBJECTION TO I.A| ||NO.19/22 IN O.P (G&W) NO. 418/2021 FILED| ||BY THE RESPONDENT| OP(FC) No.723 of 2022 12 Exhibit P15 A TRUE COPY OF THE I.A NO.12/2021 IN O.P (G&W) NO.418/2021 FOR AMENDING THE ORIGINAL PETITION FILED BY THE PETITIONER Exhibit P16 A TRUE COPY OF THE AMENDED PETITION IN O.P (G&W) NO. 418 OF 2021 BEFORE THE FAMILY COURT KOLLAM