Sayana v. Abdul Razak Ebrahim

## **`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 FEBRUARY 2023 / 13TH MAGHA, 1944 ``` ``` OP (FC) NO. 42 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 23.12.2022 IN IA NO.18 OF 2022 IN GOP 1621/2019 OF FAMILY COURT, THRISSUR ``` ## **`PETITIONER/PETITIONER/RESPONDENT:`** ``` SAYANA, AGED 35 YEARS D/O IQBAL MOHAMMED, PUTHUVEETTIL HOUSE, THAIKKAD. P.O., GURUVAYOOR, CHAVAKKAD TALUK, THRISSUR DISTRICT-, PIN - 680104 ``` ``` BY ADVS. P.T.MARY R.S.REJITHA BENRAJ K.R. ACHUTHAN K. NANDA SURENDRAN ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` ABDUL RAZAK EBRAHIM AGED 39 YEARS S/O. T.M.EBRAHIM, VALIYAPARAMBIL HOUSE, RAYIRIMANGALAM DESOM, TANUR VILLAGE, TANUR. P.O., TIRUR TALUK, MALAPPURAM DISTRICT PIN – 676 302. ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(FC) No.42 of 2023 2 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner is the respondent in G.O.P.No.1621 of 2019 on the files of Family Court, Thrissur, which is one filed by the respondent herein–husband, seeking permanent custody of the minor child by name 'Imran Abdul Razak'. The petitioner has filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India seeking an order to set aside Ext.P13; stay the operation of Ext.P13 order in I.A.No.18 of 2022 in G.O.P.No.1621 of 2019; and to pass an order directing the Family Court, Thrissur to consider I.A.No.19 of 2022 in G.O.PNo.1621 of 2019, after interacting with the minor child and taking into consideration his interest and welfare. The document marked as Ext.P13 is the relevant extract of ‘A diary’ maintained by the Family Court, Thrissur, under Rule 382 of the Civil Rules of Practice, Kerala. Entry against serial No.22 in Ext.P13 ‘A diary’ is the proceedings dated 23.12.2022 in respect of I.A.Nos.18 of 2022 and 19 of 2022 in O.P.No.1621 of 2019. The said proceedings is extracted hereunder; “IA 19/22 allowed, for counter, pray. Adjourned to 20.01.2023. IA 18/22 for counter and hg. Call on 20.01.2023. OP(FC) No.42 of 2023 3 AA 19/22 Ptr present, Resp’s father present sought time for producing the child as the child is undergoing treatment, child shall be produced at 10 AM on 25.12.2022 and be given in custody of the Ptr till 5 PM on 25.12.2022.” 2. On 24.01.2023 when this original petition came up for admission, the learned counsel for the petitioner submitted that the petitioner wants to challenge the order dated 23.12.2022 in I.A.No.19 of 2022 in O.P.No.1621 of 2019. Though the petitioner made an application for obtaining certified copy of that order, she is yet to be issued with the same. In such circumstances, the petitioner filed this original petition producing Ext.P13 relevant extract of ‘A diary’. 3. Based on the aforesaid submissions made by the learned counsel for the petitioner, by order dated 24.01.2023, we have directed the Family Court, Thrissur, to issue certified copy of the order in I.A.No.19 of 2022 in O.P.No.1621 of 2019, based on the copy application already made by the petitioner, within two days, so as to enable the petitioner to file an application to substitute Ext.P13 with a copy of that order. Registry was directed to communicate that order to the Family Court, Thrissur on 24.01.2023 itself. OP(FC) No.42 of 2023 4 4. Today when this matter is taken up for consideration, a report dated 25.01.2023 of the Presiding Officer of the Family Court, Thrissur, is placed on record, wherein it is stated that no copy application has been filed for obtaining a copy of the order in I.A.No.19 of 2022 in O.P.No.1621 of 2019. Since the said case comes within the jurisdiction of the newly formed Family Court at Kunnamkulam, the entire case records were transmitted to the said court, which has been re-numbered as G.O.P.No.189 of 2022 before that court. 5. On 31.01.2023, the petitioner has filed I.A.No.1 of 2023 seeking an order to accept the order dated 23.12.2022 in I.A.No.19 of 2022 in G.O.P.No.189 of 2022 of the of the Family Court, Kunnamkulam as Ext.P14. By the said order, the Family Court directed production of the minor child in court on 25.10.2022 at 10:00 a.m. 6. Heard the learned counsel for the petitioner. 7. On a query made by this Court, the learned counsel for the petitioner would submit that the petitioner wants to challenge the order passed by the Family Court in I.A.No.18 of 2022 in G.O.P. No.189 of 2022. Though the petitioner submitted application for OP(FC) No.42 of 2023 5 certified copy of that order, the Family Court issued certified copy of the order in I.A.No.19 of 2022. 8. From the relevant extract of ‘A diary’ of the Family Court, Thrissur, which is marked as Ext.P13, it is seen that the Family Court has passed orders on 20.01.2023 in I.A.No.18 of 2022 and I.A.No.19 of 2022 in G.O.P.No.1621 of 2019. The case records in the said original petition was transmitted to the newly formed Family Court at Kunnamkulam, where it is re-numbered as G.O.P.No.189 of 2022. 9. As already noticed hereinbefore, the document marked as Ext.P13 is the relevant extract of ‘A diary’ maintained by the Family Court, Thrissur, under Rule 382 of the Civil Rules of Practice, Kerala. As per Rule 382, in all suits, appeals and miscellaneous proceedings a general diary shall be maintained setting out only the judicial work done in each case. Entries such as filing of suits, appeals, petitions and issue and return of process, etc., which are only ministerial, shall be omitted. The ‘A diary’ shall be signed by the Judge himself. 10. Chapter XI of the rules of the High Court of Kerala, deals with proceedings under Articles 226, 227 and 228 of the OP(FC) No.42 of 2023 6 Constitution of India. Rule 145 deals with form of presentation of an application under Article 226, 227 or 228 of the Constitution. Rule 147 deals with the documents which should accompany such an application under Article 226, 227 or 228. As per Clause (b) of sub-rule (1) of Rule 147 such an application shall be accompanied by a copy of the impugned order, if any. 11. In **Babu Scaria v. Jessy Thomas [2017 (5) KHC 721]** this Court held that going by Clause (b) of sub-rule (1) of Rule 147 of the Rules of the High Court of Kerala, 1971, if an order is impugned in an application filed under Article 226 or 227 or 228 of the Constitution of India, such application shall be accompanied by a copy of the order impugned. Further, sub-rule (2) of Rule 147 mandates that copy of the impugned order and other documents which accompany an application filed under Article 226 or 227 or 228 of the Constitution of India shall be authenticated as true copies by the advocate and if there is no advocate, by the party. 12. In view of the statutory provisions referred to hereinbefore and also the law laid down in the decision referred to supra, in an original petition filed under Article 227 of the Constitution of India challenging an order passed by the Family OP(FC) No.42 of 2023 7 Court, which is not an order appealable order under Section 19 of the Family Courts Act, 1984, the petitioner has to produce an authenticated copy of the impugned order as per the mandate of the Rule 147 of Rules of High Court of Kerala, 1971. Such an original petition cannot be entertained by producing the relevant extract of ‘A diary’ maintained by the Family Court under Rule 382 of the Civil Rules of Practice, Kerala. 13. By order dated 24.01.2023 the Family Court, Thrissur, was directed to issue certified copy of the order in I.A.No.19 of 2022 in O.P.No.1621 of 2019 to the petitioner, based on the copy application already made, within two days, so as to enable the petitioner to file an application to substitute Ext.P13 with a copy of that order. Instead of filing an interlocutory application to substitute Ext.P13, with a copy of the order dated 23.12.2022 obtained after the said order of this Court dated 24.01.2023, the petitioner has chosen to file I.A.No.1 of 2023, under Rule 154 of the Rules of the High Court of Kerala, 1971 to accept the said order as an additional document and to mark the same as Ext.P14 in the original petition. The learned counsel for the petitioner would submit that the petitioner wants to challenge the order dated OP(FC) No.42 of 2023 8 23.12.2022 in I.A.No.18 of 2022 in G.O.P.No.189 of 2022. In the above circumstances, this original petition fails, on the ground of maintainability and the same is accordingly dismissed; however, without prejudice to the right of the petitioner to file a fresh original petition, challenging the orders dated 23.12.2022 in the interlocutory applications in G.O.P.No.189 of 2022, after producing authenticated copy of those orders. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** ``` jg ``` OP(FC) No.42 of 2023 9 ## **`APPENDIX OF OP (FC) 42/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE GUARDIAN O.P, 1621/2019`| ||`FILED BY THE RESPONDENT BEFORE THE`| ||`HONOURABLE FAMILY COURT THRISSUR DATED`| ||`16/8/2019 .`| |`Exhibit P2`|`TRUE COPY OF THE ORDER OF THE HONOURABLE`| ||`FAMILY COURT, THRISSUR IN I.A.`| ||`6599/2019, I.A. 6/2021, I.A. 7/2021 AND`| ||`I.A. 8/2021 DATED 4/10/2021`| |`ExhibitP3`|`THE TRUE COPY OF THE PRESCRIPTION OF DR`| ||`KIRAN KUMAR K. (PSYCHIATRY) RECEIVED BY`| ||`MINOR IMRAN ABDUL RAZZAK DATED 23/11/22`| |`Exhibit P4`|`TRUE COPY OF THE OUT PATIENT TICKET`| ||`RECEIVED BY MINOR IMRAN ABDUL RAZZAK`| ||`FROM NATIONAL INSTITUTE OF MENTAL HEALTH`| ||`AND NEURO SCIENCE, BANGALORE (NIMHANS)`| ||`DATED 6/12/2022`| |`Exhibit P5`|`TRUE COPY OF THE PRESCRIPTION RECEIVED`| ||`BY MINOR IMRAN ABDUL RAZZAK FROM`| ||`NATIONAL INSTITUTE OF MENTAL HEALTH AND`| ||`NEURO SCIENCE, BANGALORE (NIMHANS) DATED`| ||`9/12/2022 .`| |`Exhibit P6`|`TRUE COPY OF THE SCREENING PERFORMA`| ||`RECEIVED BY MINOR IMRAN ABDUL RAZZAK`| ||`FROM NATIONAL INSTITUTE OF MENTAL HEALTH`| ||`AND NEURO SCIENCE, BANGALORE (NIMHANS)`| ||`DATED 6/10/22`| |`Exhibit P7`|`TRUE COPY OF THE INTERIM CUSTODY`| ||`PETITION I.A. 18/2022 IN O.P. 1621/2019`| ||`FILED BY THE RESPONDENT BEFORE THE`| ||`HONOURABLE FAMILY COURT, THRISSUR,DATED`| ||`5/12/2022.`| |`Exhibit P8`|`TRUE COPY OF THE OBJECTION FILED BY THE`| ||`PETITIONER IN I.A. 18/2022 IN O.P.`| ||`1621/2019 FILED BY THE PETITIONER BEFORE`| ||`THE HONOURABLE FAMILY COURT, THRISSUR,`| ||`DATED 12/12/2022.`| OP(FC) No.42 of 2023 10 ``` Exhibit P9 ``` ``` TRUE COPY OF THE MODIFICATION PETITION I.A. 19/2022 IN O.P. 1621/2019 FILED BY THE PETITIONER BEFORE THE HONOURABLE FAMILY COURT, THRISSUR,,DATED 12/12/2022. ``` - `Exhibit P10 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN MODIFICATION PETITION I.A. 19/2022 IN O.P. 1621/2019 FILED BY THE PETITIONER BEFORE THE HONOURABLE FAMILY COURT, THRISSUR DATED 17/12/2022` - `Exhibit P11 TRUE COPY OF THE EXEMPTION PETITION I.A. 20/2022 IN O.P. 1621/2019 FILED BY THE PETITIONER BEFORE THE HONOURABLE FAMILY COURT, THRISSUR,DATED 22/12/2022.` - `Exhibit P12 TRUE COPY OF THE REVIEW PETITION AS I.A. 21/2022 IN O.P. 1621/2019 FILED BY THE PETITIONER BEFORE THE HONOURABLE FAMILY COURT, THRISSUR, DATED 24/12/2022.` - `Exhibit P13 TRUE COPY OF THE A DIARY OF THE ORDER DATED 23/12/2022 IN I.A. 19/2022 AND I.A. 18/2022 IN O.P. 1621/2019` - `Exhibit P14 TRUE COPY OF THE ORDER BY THE FAMILY COURT, KUNNAMKULAM DATED 23/12/2022 IN I.A. 19/2022 IN GO.P. 189/2022 AND MARKED AS EXHIBIT P14.`