Sarmila Sasidharan v. Dibin Devassy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 O.P.(FC) NO. 290 OF 2022** **AGAINST THE ORDER DATED 12.04.2022 IN I.A.NO.8 OF 2022 IN GOP NO.697 OF 2018 OF FAMILY COURT, IRINJALAKUDA PETITIONER:** **SARMILA SASIDHARAN AGED 27 YEARS, D/O. SASIDHARAN, KOONIPARAMBIL HOUSE, ARIPALAM P.O., POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN – 680688.** **BY ADVS. SUNIL V.MOHAMMED P.KULUSU MANOJ N. AJITHA APPU M.S.NEETHUMOL AADIL SHAH A.S.** **RESPONDENT:** **DIBIN DEVASSY AGED 32 YEARS, S/O. DEVASSY, KOLENCHERY HOUSE, MATHILAKAM P.O., PAPPINIVATTOM VILLAGE, THRISSUR DISTRICT, PIN - 680683** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON** **02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.290 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The respondent-wife in GOP No.697 of 2018 of the Family Court, Irinajakuda is the petitioner in this Original Petition filed under Article 227 of the Constitution of India. She is aggrieved by Ext.P4 order and also the steps initiated by the Family Court pursuant to the said order. Therefore, she seeks to set aside Ext.P4. 2. The respondent filed GOP No.697 of 2018 against the petitioner seeking custody of their minor child and such other reliefs. Ext.P1 is a copy of that petition. The petitioner filed Ext.P2 counter-statement, where the contentions of the respondent were strongly assailed. It was contended that although the Judicial Magistrate of the First Class, Irinajakuda, passed Ext.P3 order directing the respondent to pay maintenance at the rate of Rs.5,000/- per month, he did not make any payment and that his intention is only to grab the custody of the child, for which he is not entitled to. The respondent filed I.A.No.8 of 2022 in the GOP claiming interim 3 O.P.(FC) No.290 of 2022 custody of the child. When that matter came up for consideration before the Family Court, Irinajakuda, on 12.04.2022, the court on the consent of the parties, passed Ext.P4 order, which reads thus: “This petition is filed under Section 12 of the Guardian & Wards Act and under Section 38 of the Special Marriage Act for the interim custody of the minor child. Respondent agrees to give custody of the child from 10 am on April, 15 to 10 am on May, 15. Take and return child from court premises. Pay Rs.10,000/- maintenance due, while taking the child and returning him.” 3. Now, the allegation of the petitioner is that the respondent has continuously been flouting the direction for payment of maintenance amount to the petitioner, but he is insisting to hand over custody of the child. She also contends that the said order was passed without taking all the relevant facts into account and therefore the said order is liable to be set aside. 4. When the matter came up for admission today, we heard the learned counsel appearing for the petitioner in detail. 4 O.P.(FC) No.290 of 2022 5. Ext.P4 is an interim order passed by the Family Court, Irinajakuda, on the basis of the consent of the petitioner. Now, the allegations are that the respondent is not complying with the directions in the order; whereas, he insists to hand over custody of the child. The learned counsel for the petitioner would submit that without abiding by the stipulations in the order regarding the payment, the respondent cannot insist the petitioner to comply with the corresponding obligation. It is contended that Ext.P4 order is vitiated for the reason of want of consideration of relevant aspects, especially the welfare of the child. But, nothing has been pointed out which eluded consideration of the Family Court. When Ext.P4 order was passed on the consensus of the party, there was no reason for the Family Court to go into the matter in great detail. Ext.P4 is only an interlocutory order as per which, the petitioner was directed to give custody of the child to its father during vacation, April 15th to May 15th. The period is already over. Of course, the respondent was directed to pay the maintenance amount as well. If the respondent 5 O.P.(FC) No.290 of 2022 fails to comply with that direction, the remedy of the petitioner is to get that order enforced. That is not a reason for the petitioner to challenge Ext. P4 order or to disobey it. 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 Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises 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. 7. In **Shalini Shyam Shetty v. Rajendra Shankar** 6 O.P.(FC) No.290 of 2022 **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 quasijudicial tribunals exercise the powers vested in them, within 7 O.P.(FC) No.290 of 2022 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 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. 8 O.P.(FC) No.290 of 2022 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. 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. 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 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 9 O.P.(FC) No.290 of 2022 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 the 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 10 O.P.(FC) No.290 of 2022 justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed a manifest error, 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 a gross and manifest failure of justice or the basic principles of natural justice have been flouted. 12. Having considered the contentions in the Original Petition and the submissions of the learned counsel appearing for the petitioner, in the light of the law laid in the aforesaid decisions, we find no reason to interfere with Ext.P4 order. Hence, this Original Petition fails and the same is dismissed. ## **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) No.290 of 2022 ## **APPENDIX OF OP (FC) 290/2022** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**TRUE COPY OF THE MEMORANDUM OF GOP.**|**TRUE COPY OF THE MEMORANDUM OF GOP.**|**TRUE COPY OF THE MEMORANDUM OF GOP.**| |---|---|---|---| |**Exhibit P2**|**TRUE COPY OF**|**THE COUNTER FILED**|**BY THE**| ||**PETITIONER.**||| |**Exhibit P3**|**TRUE COPY **|**OF THE ORDER **|**DATED**| ||**03.01.2020 IN**|**CRL.MP NO. 97/2020 IN MC**|| ||**NO. 2/2020 **|**OF THE JFCM **|**COURT,**| ||**IRINJALAKUDA.**||| |**Exhibit P4**|**TRUE COPY **|**OF THE ORDER **|**DATED**| ||**12.04.2022 IN**|**IA NO. 8/2022 IN GOP NO.**|| ||**697/2018**|**OF**<br>**FAMILY**|**COURT,**| ||**IRINJALAKUDA.**||| |**Exhibit P5**|**TRUE COPY OF**|**THE PROCEEDINGS OF**|**FAMILY**| ||**COURT, IRINJALAKUDA IN IA NO.**||**8/2022**| ||**IN GOP NO. 697/2018.**||| |**Exhibit P6**|**TRUE COPY OF**|**THE SEARCH WARRANT DATED**|| ||**06.05.2022**|**FORWARDED**<br>**TO**|**THE**| ||**PETITIONER.**|||