Mithra Chandran v. Manoj Ayyanchira Mani

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944** **O.P.(FC) NO. 700 OF 2022** **AGAINST THE ORDER DATED 31.10.2022 IN I.A.NO.21 OF 2022 IN O.P.(G&W) NO.38 OF 2020 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA** ## **PETITIONER:** ## **MITHRA CHANDRAN** **AGED 39 YEARS, W/O. MANOJ AYYANCHIRA MANI, DEEPTHI CYRIL HOUSE, MANAKKALA P.O., THOOVAYOOR VADAKKUMURI, ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN – 691551.** **BY ADVS. GEETHA JOB(OZHUKAYIL) TOM JOSE TANYA TOM SONAMOL K.P. ATHIRA BABU AKHIL DAS** ## **RESPONDENT:** **MANOJ AYYANCHIRA MANI AGED 45 YEARS, S/O. A.R. MANI, AYYANCHIRA HOUSE, A.M.R.A - 74, 35/307, AUTOMOBILE ROAD, MAMANGALAM, PALARIVATTOM P.O., ERNAKULAM DISTRICT, PIN - 682 025. PRESENTLY AT B-402, GEM AGENCY APARTMENTS, KORAMANGALA, 4TH BLOCK, S.T BED LAYOUT, BANGALORE, PIN – 560034.** **SMT V.P.SEEMANTHINI (SR )** 2 O.P.(FC) No.700 of 2022 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.700 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner is the respondent in O.P.(G&W) No.38 of 2020 before the Family Court, Pathanamthitta. The petitioner challenges Ext.P10, which is an order of the Family Court in I.A.No.21 of 2022 in that Original Petition, as per which the custody of the children was handed over to the respondent. 2. When this matter came up for consideration on 21.12.2022, notice was directed to be served on the respondent, through Special Messenger. The respondent entered appearance through his learned counsel. 3. Heard the learned counsel appearing for the petitioner and the Senior Counsel appeared on instructions for the respondent. 4. O.P.(G&W) No.38 of 2020 was filed by the respondent seeking to declare him the guardian of his children Thanmaya Ayyanchira Manoj and Vismaya Ayyanchira Manoj, and for custody. As per the judgment dated 19.07.2022, Ext.P4, the O.P. was decreed and the petitioner herein was 4 ## O.P.(FC) No.700 of 2022 directed to hand over custody of the children to the respondent. It is seen that the said direction was not duly complied with, which resulted in the respondent's filing interlocutory application for getting custody of the children. The Family Court directed the parties along with the children to be present before this Court. On 31.10.2022, the parties as well as the children had appeared before the Family Court, Pathanamthitta and custody of the children was handed over to the respondent. The petitioner challenges correctness and legality of the said order, Ext.P10 in this Original Petition filed under Article 227 of the Constitution of India. 5. The learned counsel appearing for the petitioner would submit that the mother is denied custody of the children on the basis of an exparte judgment passed in O.P.G&W) No.38 of 2020 and therefore Ext.P10 order as per which the custody of the children was handed over to the respondent is liable to be set aside. 6. The learned Senior counsel appearing for the respondent would point out that the review petition filed by 5 O.P.(FC) No.700 of 2022 the petitioner for getting Ext.P4 judgment reviewed is pending consideration of the Family Court, Pathanamthitta. It is further submitted that the petitioner never was prompt in appearing before the Family Court in O.P.(G&W) No.38 of 2020 and Ext.P4 judgment was rendered after taking into account all the aspects of the matter. Only because the petitioner failed to obey the direction in Ext.P4, the Family Court was constrained to initiate steps for implementing the said direction and that resulted in Ext.P10 order. 7. The directions in Ext.P4 judgment is in force. As long as it is varied or set aside, the petitioner is obliged to comply with that direction. Ext.P10 order was issued in order to enforce the direction in Ext.P4 judgment. We cannot find any patent illegality in Ext.P10 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 6 ## O.P.(FC) No.700 of 2022 jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. 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 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 7 ## O.P.(FC) No.700 of 2022 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 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 8 O.P.(FC) No.700 of 2022 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 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 9 ## O.P.(FC) No.700 of 2022 natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 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. 10 O.P.(FC) No.700 of 2022 13. Viewed in the light of the principles laid down in the aforesaid decisions, we find no reason to interfere with Ext.P10 order. The learned counsel appearing for the petitioner at this juncture seeks for an interim direction enabling the petitioner, who is the mother, to have custody of the children for a few days. As per Ext.P10 order, the custody of the children was handed over to the respondent on 31.10.2022. The petitioner is working in Bangalore. The learned counsel would submit that she would come to Ernakulam and she shall interact with the child at Ernakulam so as to avoid any kind of inconvenience to the children. ## 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 11 ## O.P.(FC) No.700 of 2022 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 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. 12 O.P.(FC) No.700 of 2022 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 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. Both are girl children. They are aged 11 and 8 years. They should have the love and affection from their 13 ## O.P.(FC) No.700 of 2022 mother also during their young age. It is therefore appropriate that the mother has the opportunity to interact with the children while their custody is with the father. There is already a long gap since 31.10.2022. In such circumstances, we are of the view that the petitioner shall be given opportunity to interact with the children so as to avoid losing of emotional connect between the mother and the children. Hence, we direct that the petitioner shall be given interim custody of the children from 10.00 a.m. on 01.01.2023 till 5.00 p.m. on 02.01.2023. The petitioner shall get and give back custody of the children from the house of the respondent, where the children are now residing. This Original Petition is dismissed with the aforesaid directions. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 14 O.P.(FC) No.700 of 2022 ## **APPENDIX OF OP (FC) 700/2022** ## **PETITIONER EXHIBITS** |**EXHIBIT P1**|**EXHIBIT P1:-TRUE COPY OF O.P (G & W)**| |---|---| ||**NO.38/2020**| |**EXHIBIT P2**|**EXHIBIT P2:TRUE COPY OF THE OBJECTION**| ||**FILED BY THE PETITIONER HEREIN BEING**| ||**THE RESPONDENT IN O.P (G & W)**| ||**NO.38/2020**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER DATED**| ||**09.08.2019 IN C.M.P NO.2768/2019 IN**| ||**M.C NO.74/2019.**| |**EXHIBIT P4**|**CERTIFIED COPY OF THE EXPARTE JUDGMENT**| ||**DATED 19.07.2022 IN O.P (G & W)**| ||**NO.38/2020**| |**EXHIBIT P5**|**TRUE COPY OF I.A NO.1/22 IN OP**| ||**NO.38/2020**| |**EXHIBIT P6**|**TRUE COPY OF R.P NO. 66 OF 2022 TO**| ||**CONDONE THE DELAY**| |**EXHIBIT P7**|**TRUE COPY OF I.A NO.25/2022 IN OP**| ||**NO.38/2020**| |**EXHIBIT P8**|**TRUE COPY OF I.A NO.24/2022 IN O.P**| ||**NO.38/2020**| |**EXHIBIT P9**|**TRUE COPY OF I.A NO.21/2022**| |**EXHIBIT P10**|**TRUE COPY OF THE ORDER IN I.A NO.**| ||**21/2022 DATED 31.10.2022**|