Prince V. Elias v. Bibin Mary Abraham

## **`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 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 ``` ``` O.P.(FC)NO.116OF 2023 ``` ``` ARISING FROM I.A.NO.4 OF 2023 IN O.P.(G&W)NO.320 OF 2021 ON THE FILE OF THE FAMILY COURT, THIRUVALLA ``` ``` PETITIONER: ``` ``` PRINCE V. ELIAS, AGED 40 YEARS, S/O.V.O.ELIAS, VALLYAPARAMBIL HOUSE, KUNNAMKERIL P.O., VELIYANADU VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT, PIN-686106. (NOW RESIDING AT FLAT NO.2905, FLOOR NO.29, MARATHONENEXZON BUILDING, S1 WING- NATIONAL HIGHWAY-4B-NR, PALSPE, KOLKHEPANAVEL, RAIGARH, MAHARASHTRA, PIN - 410206 ``` ``` BY ADVS. C.S.MANILAL S.NIDHEESH ``` ## **`RESPONDENT:`** ``` BIBIN MARY ABRAHAM, D/O.ABRAHAM JOSEPH, KANNAMKERIL HOUSE, THENGALI, KUTTOOR VILLAGE, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN-689 106. REPRESENTED BY POWER OF ATTORNEY ABRAHAM JOSEPH, S/O.K.A.JOSEPH, KUNNAMKERIL HOUSE, THENGELI, KUTTOOR, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689106 ``` ## **`OTHER PRESENT:`** ## **`SRI S. SREEDEV- FOR RESPONDENT`** ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(FC)No.116 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent in O.P.(G&W)No.320 of 2021 on the file of the Family Court, Thiruvalla, which is one filed by the respondent herein-mother for declaring her as the guardian of the minor children, namely, William Prince, Winston Prince and Wilfred Prince, aged 12 years, 9 years and 7 years respectively and for getting custody of the eldest son, William Prince. In that original petition, the petitioner-father filed I.A.No.4 of 2022 (Ext.P5), seeking an order to grant interim custody of the minor children, namely, Winston Prince and Wilfred Prince, till final disposal of the original petition and during the absence of the respondent-mother in India. In that interlocutory application, the respondent-mother filed Ext.P6 objection dated 02.02.2023. By Ext.P7 order dated 03.02.2023, the Family Court deferred consideration of that interlocutory application, since the original petition and the connected matters are ripe for trial. Ext.P7 order dated 03.02.2023 of the Family Court reads thus; “Since cases are ripe for trial, this petition is posted for evidence with O.P.” Feeling aggrieved by Ext.P7 order dated 03.02.2023 in 3 O.P.(FC)No.116 of 2023 I.A.No.4 of 2022, 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, to set aside said order dated 03.02.2023 and for other consequential reliefs. 2. On 09.03.2023, when this original petition came up for admission, this Court issued notice on admission to the respondent by special messenger, returnable by today (14.03.2023). 3. Heard the learned counsel for the petitioner-father and the learned counsel for the respondent-mother. 4. The issue that requires consideration in this original petition is as to whether the stand taken by the Family Court in Ext.P7 can be sustained in law. 5. The learned counsel for the respondent-mother would submit that O.P.(G&W)No.320 of 2021 along with connected matters are listed for trial and an Advocate Commissioner has been appointed for recording evidence, who has to file a report by 31.03.2023. 6. 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 4 O.P.(FC)No.116 of 2023 Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. ## 7. 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. ## 8. 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- 5 O.P.(FC)No.116 of 2023 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. 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. 9. 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. 10. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016** **(1) KHC 1]** a Division Bench of this Court held that the law 6 O.P.(FC)No.116 of 2023 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. 11. 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 7 O.P.(FC)No.116 of 2023 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. 12. In the instant case, Ext.P5 interlocutory application, i.e., I.A.No.4 of 2022 filed by the petitionerfather seeking interim custody of the minor children, namely, Winston Prince and Wilfred Prince, is one filed on 31.12.2022, in which the respondent-mother filed Ext.P6 objection dated 02.02.2023. Instead of passing appropriate orders on that interlocutory application, the Family Court posted the same for evidence along with the original petition. The procedure adopted by the Family Court in this regard is per se arbitrary and illegal. Considering the fact that the interim custody of one of the minor children is with the petitioner-father and the other two are presently residing with their maternal grandparents since the respondent-mother is abroad, the Family Court ought to have passed appropriate orders on that 8 O.P.(FC)No.116 of 2023 interlocutory application, without listing the same for evidence along with the original petition. 13. In the result, this original petition is allowed by setting aside Ext.P7 order dated 03.02.2023 of the Family Court, Thiruvalla I.A.No.4 of 2023 in O.P.(G&W)No.320 of 2021 and by directing the said court to consider and pass appropriate orders on that interlocutory application, as expeditiously as possible, at any rate, within a period of two weeks from the date of production of a certified copy of this judgment. It is made clear that this order will not stand in the way of the Family Court proceeding with the trial of O.P.(G&W)No.320 of 2021. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** MIN 9 O.P.(FC)No.116 of 2023 ## **`APPENDIX OF OP (FC) 116/2023`** ## **`PETITIONER EXHIBITS`** - **`EXHIBIT P1`** - **`TRUE COPY OF THE O.P.(G&W)320/2021 FILED BEFORE THE FAMILY COURT, THIRUVALLA`** - **`EXHIBIT P2 TRUE COPY OF THE COUNTER CLAIM/WRITTEN STATEMENT IN O.P.(G&W)320/2021 FILED BEFORE THE FAMILY COURT, THIRUVALLA`** - **`EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT WITH I.A.NO.3/2022 IN O.P.(G&W)320/2021 FILED BEFORE THE FAMILY COURT, THIRUVALLA`** - **`EXHIBIT P4 TRUE COPY OF THE COPY OF THE ORDER DTD. 24/12/2022 IN I.A.NO.3/2022 IN O.P.(G&W)320/2021 ON THE FILE OF THE FAMILY COURT, THIRUVALLA`** ``` EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND THE PETITION IN I.A.NO.4/2022 IN O.P.(G&W)320/2021 FILED BEFORE THE FAMILY COURT, THIRUVALLA. ``` - **`EXHIBIT P6`** ``` TRUE COPY OF THE COPY OF THE OBJECTION TO I.A.NO.4/2022 IN O.P.(G&W)320/2021 FILED BEFORE THE FAMILY COURT, THIRUVALLA ``` - **`EXHIBIT P7`** ``` TRUE COPY OF THE COPY OF THE ORDER DATED 3/2/2023 IN I.A.NO.4/2023 IN O.P.(G&W)NO.320/2021 ON THE FILE OF FAMILY COURT, THIRUVALLA ```