Mini Thomas v. Shaju P.A

## **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 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945** **OP (FC) NO. 185 OF 2023** **AGAINST THE ORDER PASSED BY THE FAMILY COURT, THRISSUR IN E.P.NO.19 OF 2022 IN O.P.NO.1563 OF 2015 DATED 18.03.2023** ## **PETITIONER/JUDGMENT DEBTOR/RESPONDENT:** **1 MINI THOMAS AGED 40 YEARS** **D/O.THOMAS, KOZHUKKULLIKKARAN HOUSE, PUTHUR POST,KUTTANELLUR, PUTHUR VILLAGE, THRISSUR TALUK & DISTRICT, PIN - 680014** **BY ADV. K.V.BHADRA KUMARI** ## **RESPONDENT/DECREE HOLDER/PETITIONER:** **1 SHAJU. P.A AGED 48 YEARS S/O.ANTHONY, PADINJAKKARA VEETTIL, ELINJIPRA P.O., ELINJIPRA VILLAGE, CHALAKUDY VIA, CHALAKKUDY TALUK, THRISSUR DISTRICT., PIN - 680721** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 12.04.2023, THE COURT ON 22.05.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.185 of 2023 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The petitioner is the judgment debtor in E.P. No.19 of 2022 in O.P.No.1563 of 2015 on the files of the Family Court, Thrissur. Aggrieved by Ext.P12 order dated 18.03.2023 in the said Execution Petition, he filed this Original Petition under Article 227 of the Constitution of India. 2. When this matter came up for admission on 12.04.2023, we heard the learned counsel appearing for the petitioner in detail. Ext.P12 reads as follows; “Both represented. Petitioner submitted that minors produced, but not handed over custody to the decreeholder. Decree Holder may initiate approximate prosecution steps. Adjourned to 05.04.2023.” 3. E.P. No.19 of 2022 was filed by the respondent seeking enforcement of the order dated 14.06.2017, the operative part of the order dated 14.06.2017, a copy of which is Ext.P1, reads as follows; “(1) The permanent custody of the children shall remain with the respondent-mother. 3 O.P.(FC) No.185 of 2023 (2) The petitioner is entitled to get custody of the children between 10 AM of the Second Saturday to 5 PM of the succeeding Sunday of each English calendar month, first half of Onam, Puja and Christmas holidays and first 15 days each in the month of April and May during summer vacation. (3) The production and taking back of the children should be in the premises of Family Court. - (4) This order shall continue till further modification is made in due course. (5) There is no order as to costs” 4. The petitioner filed Mat. Appeal. No.913 of 2017 challenging Ext.P1 order. This Court while admitting the said appeal, ordered that the petitioner should comply with the direction enabling the respondent to visit the children every Second Saturday and Sunday of every month until further orders. Ext.P2 is a copy of the order of this Court dated 10.08.2017. Thereby, the petitioner is obligated to comply with direction No.2 in Ext.P1 order. E.P. No.19 of 2022 was 4 O.P.(FC) No.185 of 2023 filed by the respondent alleging that the petitioner was not complying with the said direction. An objection was filed by the petitioner in the said Execution Petition, a copy of which is Ext.P5. 5. The contention of the petitioner is that there were no laches or disobedience on her part in producing the children before the Court in compliance with the Ext.P2 order. It is her contention that despite production of the children before the Family Court, the respondent did not use to interact with the children in an appropriate manner, and without exercising his right of interaction, complained before the Family Court that the petitioner did not comply with the directions in the order dated 14.06.2017, which was modified by this Court in the order dated 10.08.2017. 6. The learned counsel appearing for the petitioner would submit that every time the petitioner takes the children to the Family Court for interaction the fact would be recorded in the custody register maintained in the Family Court and the facts reflected from Exts.P7 to P9 which are the copies of 5 O.P.(FC) No.185 of 2023 various pages in the custody register would reveal that the allegations leveled against the petitioner concerning alleged noncompliance are false. The learned counsel would also submit that except during the lock-down period, and when the children were suffering from ailments, they were promptly produced before the Family Court. Therefore, the direction of the Family Court as per Ext.P12 to initiate prosecution steps against the petitioner is totally illegal and unjust. Pointing out such facts and circumstances, the learned counsel urges to set aside Ext.P12. 7. In Ext.P12, no right of the parties was decided. When the respondent raised an allegation that the children, despite being produced in the Family Court, have not been handed over to the respondent as directed in the custody order, the Family Court instructed the respondent to initiate appropriate prosecution steps. The said direction can be termed as a permission given to the respondent to take appropriate action in regard to the complaint he has raised. There is no direction that the petitioner should be prosecuted. 6 O.P.(FC) No.185 of 2023 There is no order in Ext.P12 that there are materials for taking action for prosecution steps against the petitioner. When that is the nature of Ext. P12 order, how can the petitioner approach this Court invoking the provisions of Article 227 of the Constitution of India for setting aside that order? 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 analyzing 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 7 ## O.P.(FC) No.185 of 2023 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 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 8 ## O.P.(FC) No.185 of 2023 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 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 9 O.P.(FC) No.185 of 2023 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. Supervisory jurisdiction under Article 227 of the Constitution of India can be exercised to correct if there is any flagrant violation of fundamental principles of law of justice in rendering an order. If there occurred serious perversity in entering into a finding resulting in gross and manifest failure of justice and thereby flouting the basic principles of natural justice also this Court may be able to exercise its jurisdiction to correct it, under Article 227 of the Constitution of India. Here, the Family Court, Thrissur did not enter into any finding regarding the prosecution steps contemplated against the petitioner. The Family Court only had observed that the respondent was free to initiate appropriate prosecution steps. 10 O.P.(FC) No.185 of 2023 It does not contain any finding or order. 14. In such circumstances, we are of the view that this Court is not expected to exercise its powers under Article 227 of the Constitution of India in order to interfere with Ext.P12 order. It is for the Family Court to consider whether there occurred any violation of the custody order on the basis of evidence placed before it. Even before filing a petition for prosecuting, the petitioner rushed to this Court. Therefore, this Original Petition is too premature to be entertained. Hence, this Original Petition is dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** Dxy 11 O.P.(FC) No.185 of 2023 ## **APPENDIX OF OP (FC) 185/2023** ## **PETITIONER EXHIBITS** - **Exhibit-P1 A TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, THRISSUR IN O.P NO: 1563/2016 DATED 14/6/2017** - **Exhibit-P2 A TRUE COPY OF THE INTERIM ORDER PASSED IN MAT APPEAL NO: 913/2017 DATED 10/8/2017** - **Exhibit-P3 TRUE COPY OF ENTRY MADE BY THE PETITIONER IN THE RELEVANT PAGE OF THE CUSTODY REGISTER ON 13/3/2021 IN O.P NO: 1563/2015 .** - **Exhibit-P4 TRUE COPY OF E.P. NO: 19/2022 IN OP NO: 1563/2015 FILED BY THE RESPONDENT HEREIN THE FAMILY COURT, THRISSUR** - **Exhibit-P5 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P. NO:19/2022 IN O.P NO: 1563/2015 DATED 10/6/2022 .** - **Exhibit-P6 TRUE PHOTOCOPY OF THE RELEVANT PAGE OF THE CUSTODY REGISTER SHOWING THE ENTRY MADE BY THE PETITIONER ON 11/6/2022 ,** - **Exhibit-P7 TRUE COPY OF THE ENDORSEMENTS MADE BY THE PETITIONER AND THE RESPONDENT IN THE RELEVANT PAGE OF THE CUSTODY REGISTER ON 10/12/2022 .** - **Exhibit-P8 TRUE COPY OF THE ENDORSEMENT MADE BY THE PETITIONER ON 14/1/2023 IN THE RELEVANT PAGE OF CUSTODY REGISTER.** - **Exhibit-P9 TRUE COPY OF THE ENDORSEMENTS MADE BY THE PETITIONER AS WELL AS THE RESPONDENT ON 11/3/2023 IN THE** 12 ## O.P.(FC) No.185 of 2023 **RELEVANT PAGE OF THE CUSTODY REGISTER .** **Exhibit-P10 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE JUBILEE MISSION MEDICAL COLLEGE HOSPITAL, THRISSUR IN FAVOUR OF RYAN. P.S.** **Exhibit-P11 TRUE COPY OF NOTICE OF INVITATION FOR ALUMNI MEET OF CHRIST COLLEGE HELD ON 11/3/2023 .** **Exhibit-P12 CERTIFIED COPY OF THE ORDER PASSED IN EP NO: 19/2022 IN O.P NO: 1563/2015 OF FAMILY COURT, THRISSUR DATED 18/3/2023 .**