OP (FC) No. 685 of 2022; Rejitha v. Bipin

# **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 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA,** ## **1944** ## **OP (FC) NO. 685 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OP 1380/2021 OF FAMILY COURT,** ## **ATTINGAL** ## **PETITIONER/S:** **REJITHA AGED 28 YEARS D/O RAJAN, RANI COTTAGE, PUTHUKURICHI, KADINAMKULAM, THIRUVANANTHAPURAM-695303, REPRESENTED BY HER POWER OF ATTORNEY HOLDER LEELA RAJAN, W/O RAJAN, AGED 60 YEARS, RANI COTTAGE, PUTHUKURICHI, KADINAMKULAM, THIRUVANANTHAPURAM695303. , PIN - 695303** **BY ADV LATHEESH SEBASTIAN** ## **RESPONDENT/S:** **BIPIN AGED 33 YEARS BIPIN, S/O NELSON A PEREIRA, PEREIRA COTTAGE, PUTHUKURICHI, KADINAMKULAM, THIRUVANANTHAPURAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NELSON. A PEREIRA, PEREIRA COTTAGE, PUTHUKURICHI, KADINAMKULAM, THIRUVANANTHAPURAM 695303. , PIN - 695303** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(FC)No.685 of 2022 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed O.P.No.1380 of 2021 before the Family Court, Attingal which is one filed against the respondent hereinhusband, seeking permanent custody of the minor child by name Abel Pereira. The petitioner, is working in Saudi Arabia. The father of the child is working in Dubai. The minor child is now with his maternal grandparents. The petitioner filed I.A.No.3 of 2022 seeking permission to take the child to Saudi Arabia. I.A.No.3 of 2022 now stands dismissed by the order dated 12.05.2022, for the reason that the petitioner has filed that interlocutory application without specific pleadings, even without furnishing Passport or Visa details. Feeling aggrieved, the petitioner is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. Heard the learned counsel for the petitioner. Considering the nature of relief proposed to be granted, service of notice on the respondent is dispensed with. 5. The reasoning of the Family Court in the order dated 12.05.2022, for rejecting I.A.No.3 of 2022 in O.P.No.1380 of 2022, is contained in paragraph 7 of that order which reads OP(FC)No.685 of 2022 3 thus; ''7. **Point No.1:-** Find I have gone through the prayer in the IA. For the reasons stated in the accompanying affidavit, this Hon'ble Count may pass an order urgently, in that circumstances that the respondent was consented to carry the minor ward along with his mother to gulf country. Thereafter, obtained visa to the child. The respondent and his power of attorney holder father act against the interest and welfare of the minor. Thereby obstructed the petitioner's mother from adhering her child from studying for the last 2 years. In support of the petitioner's claims he had produced a document request for family visit. The date of application was 07.04.2022. The IA is opposed by the respondent contenting that the respondent will come to India in October and the matter can be settled and the matter can be adjudicated. The petitioner did not produce copy of passport, not mentioned its number in IA her present status in the gulf country where about her place of work etc. The petitioner need to carry her child to her work place for a particular period thereafter she returned to her native after the vacation. The respondent's father is in Saudi Arabia. The petitioner is a nurse in a hospital in Saudi. The respondent was made a promise to carry her to gulf and provide employment. The respondent left to gulf. Subsequently, she had obtained a job in Saudi as a nurse. Petitioner urged to carry the minor ward along with her for 2 months. I have considered the both rival contention from the bar. In this point I have already looked into the prayer in the IA. The prayer is not specific. She never sought permission of OP(FC)No.685 of 2022 4 this court to permit her to carry the minor ward to foreign country. So without specific pleadings about the petitioner's passport number in 1A production of passport or visa for perusal the prayer cannot be allowed. The affidavit did not contain the address of the petitioner in gulf country, her place of work etc. Without exposing these fact and in the lack of specific prayer about permission of this court, this court is not inclined to grant relief in this 1A. Hence 1A dismissed.'' 6. We have perused the affidavit filed in support of I.A.No.3 of 2022, which is marked as Ext.P2. In the said affidavit filed, the petitioner has not chosen to furnish the necessary particulars, i.e., her passport and visa details. In the absence of any such materials, the Family Court has no option other than to dismiss I.A.No.3 of 2022 due to lack of basic pleadings. 7. 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. 8. 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 OP(FC)No.685 of 2022 5 227 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. 9. 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 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. OP(FC)No.685 of 2022 6 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. 10. 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. 11. 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 OP(FC)No.685 of 2022 7 ## palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 12. 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 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. 13. The reasoning of the Family Court in the order dated OP(FC)No.685 of 2022 8 12.05.2022 for rejecting I.A.No.3 of 2022, cannot be set to be either perverse or patently illegal. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible no interference is warranted on the order dated 12.05.2022, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, when the basic facts are not pleaded in the affidavit filed in support of that application. In the result, the challenge made in this Original Petition against the order dated 12.05.2022 in I.A.No.3 of 2022 in O.P.No.1380 of 2021 at the Family Court, Attingal fails and the Original Petition is accordingly dismissed, without prejudice to the right of the petitioner to file a fresh application before the Family Court with specific pleadings, i.e., passport, visa details, etc. and prosecuting the same in accordance with law, since the request made by the petitioner is regarding interim custody of a minor child. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** Dxy OP(FC)No.685 of 2022 9 ## **APPENDIX OF OP (FC) 685/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITION IN O.P. NO.1380/2021 OF FAMILY COURT, ATTINGAL Exhibit P2 TRUE COPY I.A NO 03/2022 IN O.P NO 1380/2021 OF FAMILY COURT, ATTINGAL Exhibit P3 TRUE COPY OF THE OBJECTION OF THE RESPONDENT TO EXT.P2 PETITION Exhibit P4 TRUE COPY OF THE ORDER OF THE FAMILY COURT DATED 12.05.2022 IN I.A NO.03/2022 IN O.P. NO.1380/2021 Exhibit P5 TRUE COPY OF THE POWER OF ATTORNEY HOLDER OF THE PETITIONER