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High Court of KeralaDivision BenchOriginal Petition dismissed; order of the Famil...

Sethulakshmi Harinarayanan v. Sreenath Thulasidas

Case / Petition Number:O.P.(FC) No.439 of 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Anil K. Narendran
  • P.G. Ajithkumar
Judgment Date
2022-09-23
Court Decision / Holding
The High Court held that there was no perversity in the Family Court’s order and that Article 227 powers should be exercised with restraint. It endorsed the Family Court’s choice of Ernakulam premises for custody handovers and interaction, observed that the petitioner’s convenience did not justify altering the arrangement, and dismissed the Original Petition. The court emphasized the need to protect the child’s welfare and the integrity of judicial proceedings, and it declined to intervene despite the petitioner’s inconvenience.
Final Disposition
Original Petition dismissed; order of the Family Court Ernakulam upheld; no interference under Article 227 of the Constitution.

Parties to the Case

Appellants / Petitioners

  • Sethulakshmi Harinarayanan

Respondents

  • Sreenath Thulasidas

Legal Representation & Advocates

Counsels for Petitioners

  • • N. P. Prajeesh

Case Synopsis & Summary

This Original Petition (O.P.(FC) No.439 of 2022) before the High Court of Kerala at Ernakulam challenges a Family Court Ernakulam order granting interim custody of the child to the father. The petitioner, the mother, is aggrieved by the Family Court’s modification of interim custody, under which the father is allowed custody on the third Saturday and the following Sunday each month, from 10:00 a.m. to 5:00 p.m., with handover to occur at the Family Court premises. The Family Court’s order followed earlier petitions in the protracted matrimonial dispute, including a divorce petition (O.P.2494 of 2018) on cruelty and mental disorder, and a separate petition by the father (O.P.(G&W) No.857 of 2021) seeking permanent custody of the child. The petitioner sought to set aside or modify the custody arrangement on grounds of inconvenience, as she works on Saturdays and finds the Ernakulam court premises inconvenient for handover; she proposed North Paravur as a more convenient venue. The court relied on a Sheristadar report and observed that the child’s welfare and consistency were paramount, noting no substantial non‑compliance by the petitioner and maintaining that the Ernakulam premises are a suitable venue. The court cited Subaida v. Deputy Tahsildar (RR) to emphasize that Article 227 powers are discretionary and must be exercised sparingly to uphold public confidence in the administration. The High Court ultimately dismissed the petition, upholding the Family Court order and declining interference under Article 227.

Provisions of Law Cited

Constitution of India, Article 227Constitution of India, Article 226

Legal Doctrines & Maxims

  • Article 227 powers are discretionary and to be exercised sparingly on an equitable principle; not to grant relief in isolated cases but to promote public confidence in administration
  • Intervention under Article 227 is not to be used where the order is not perverse or illegal, and where the inferior court’s order does not suffer from settled legal principles
  • Article 226 and Article 227 are distinct: Article 226 protects individual grievances while Article 227 exercises superintendence to ensure efficiency of the system

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the interim custody order should be maintained at a venue convenient to her schedule, arguing that Saturdays are working days for her and requiring travel to Ernakulam for handover imposes undue hardship. She seeks to set aside or modify the order dated 18.04.2022 and the subsequent modification of custody to be performed at the Family Court premises in Ernakulam, or at a North Paravur venue, arguing inconvenience and potential disruption to the child’s routine.

Contentions of Respondents

The respondent contends that the Family Court’s premises in Ernakulam were found to be the appropriate site for custody handover and interaction with the child. He asserts that any prior non‑compliance at North Paravur is a matter of record and maintains that the child’s best interests are served by the court‑ordered arrangement and by preserving the child’s welfare and stability. He opposes interference with the Family Court order on grounds of convenience and argues that the petitioner’s travel inconvenience does not warrant modification of the custody terms.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Subaida v. Deputy Tahsildar (RR), Thrissur District and others2019 KLT SN 68PositiveCited to support the discretionary nature of Article 227 powers and the principle that such supervisory power should be exercised sparingly to preserve public confidence in the administration.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **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 SEPTEMBER 2022 / 1ST ASWINA, 1944** **O.P.(FC) NO. 439 OF 2022** **AGAINST THE ORDER DATED 13.06.1022 IN I.A.NO.2257 OF 2022 IN I.A.NO.1853 OF 2021 IN O.P.NO.857 OF 2021 OF THE FAMILY** **COURT, ERNAKULAM** ## **PETITIONER:** **SETHULAKSHMI HARINARAYANAN AGED 31 YEARS, D/O HARINARAYANAN, "KAMAL" HOUSE, KOTTARAPPATTU LANE, NEAR MUNICIPAL TOWN HALL, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN – 683513.** **BY ADV N.P.PRAJEESH** ## **RESPONDENT:** ## **SREENATH THULASIDAS** **AGED 35 YEARS, S/O THULASIDAS, PADMASREE HOUSE, NEAR CHENDAMANGALAM PANCHAYATH OFFICE, NORTH PARAVUR, ERNAKULAM, ERNAKULAM DISTRICT, PIN – 683512.** **PARTY- IN- PERSON -RESPONDENT** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 23.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** O.P.(FC) No.439 of 2022 ## **JUDGMENT** ## Ajithkumar, J. This Original Petition was filed by the mother, who is the respondent in O.P.No.857 of 2021 on the file of the Family Court, Ernakulam. She is aggrieved of Ext.P12 order dated 13.06.2022 in I.A.No.2257 of 2022 in I.A.No.1853 of 2022 in O.P.No.857 of 2020. 2. This Original Petition was admitted to file on 05.08.2022 and notice was directed to be served on the respondent. An interim order was passed on that day allowing the respondent-father to interact with the child as allowed in the impugned order at the premises of the Courts at North Paravur. On 29.08.2022, this Court has directed that the petitioner along with the child shall report before the Sheristadar, Additional District Court, North Paravur on all Saturdays, except second Saturday at 10.00 a.m. and the respondent was permitted to interact with the child from 10.00 a.m. to 1.00 p.m. The Sheristadar was directed to submit a report in that regard also. **3** O.P.(FC) No.439 of 2022 3. The Sheristdar submitted a report dated 19.09.2022 stating that on 03.09.2022 and 17.09.2022 the child was produced before him and father had interacted with the child from 10.00 a.m. to 1.00 p.m. 4. Heard the learned counsel appearing for the petitioner and the respondent in person. 5. The child, Nandika Nair, is aged 5½ years now. She is in the custody of the petitioner-mother. The marital discord between the petitioner and the respondent developed much earlier and that resulted in their litigating each other. The petitioner filed O.P.No.2494 of 2018 seeking divorce on the ground of cruelty and mental disorder of the respondent. She also filed O.P.No.726 of 2019 for return of money and gold ornaments. The respondent filed O.P.(G&W) No.857 of 2021 seeking permanent custody of the child. The Original Petitions filed by the petitioner is pending consideration of the Family Court, Ernakulam. 6. In I.A.No.1853 of 2021 filed by the respondent in O.P.No.857 of 2021, the Family Court, Ernakulam, allowed **4** O.P.(FC) No.439 of 2022 him to have interim custody of the child on the third Saturday and the ensuing Sunday in every month. The direction was to handover custody of the child from 10.00 a.m. on Saturdays to 5.00 p.m. on Sunday. Alleging that the child got upset when the overnight custody was given to the respondent, the petitioner has filed I.A.No.2257 of 2022 for modifying the said order of interim custody. Both sides raised allegations against each other. In relation to the custody of the child, the Family Court, Ernakulam, after considering the matter in detail modified the order dated 18.04.2022 as follows: “The mother shall hand over custody of the minor, Nanditha Nair to the father from 10.00 a.m. to 5.00 p.m. on every Saturday. The handing over and taking back the child shall be done at the premises of the Family Court, Ernakulam.” 7. The petitioner wants to set aside the said order or at least modify it, saying that Saturday is a working day for her, and therefore, it is inconvenient for her to take the child to the Family Court, Ernakulam, for handing over to the respondent. The petitioner wants to handover the child at the premises of the courts at North Paravur. Of course, as per the report dated **5** O.P.(FC) No.439 of 2022 19.09.2022 of the Sheristdar, Additional District Court, North Paravur interaction with the child by the father was taken place at the premises of the court at North Paravur on two Saturdays in September, 2022. The respondent would allege that on earlier occasions when custody was directed to be handed over at the premises of the court at North Paravur, there occurred non compliance from the part of the petitioner. It is also contended that the premises of the Family Court, Ernakulam, is the convenient place for bringing the child and the attempt of the petitioner is to somehow sabotage the impugned order. 8. The contention of the petitioner is that since she is working in a private organisation and Saturdays are working days, it would be inconvenient for her to come to Ernakulam by availing leave. Other than that, no objection is raised by the petitioner for bringing the child to the Family Court, Ernakulam for handing over the custody to the respondent. It may be noted that the Family Court after considering every aspect of the matter has decided the premises of Family Court at Ernakulam as the suitable place for interaction. **6** O.P.(FC) No.439 of 2022 9. This Court deliberated upon the nature and extent of the powers under Article 227 of the Constitution of India in ## **Subaida v. Deputy Tahsildar (RR), Thrissur District and others [2019 KLT SN 68)** (rendered by one among us, Anil K. Narendran J.) and held, “The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases, but should be directed for promotion of public confidence in the administration in the larger public interest, whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, 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.” 10. Viewed so, it is not available for this Court to interfere with an order of a subordinate court unless the same is perverse and totally against settled principles of law. North Paravur and Ernakulam are places at a distance of less than 25 kms. When the custody is directed to be given in the **7** ## O.P.(FC) No.439 of 2022 premises of the Family Court, there is absolutely no reason to interfere with the same solely for the reason that the mother has some kind of inconvenience. We are of the definite view that the impugned order does not suffer from any vice or illegality entailing interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. Hence this Original Petition fails and the same is dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr **8** O.P.(FC) No.439 of 2022 ## **APPENDIX OF OP (FC) 439/2022** ## **PETITIONER EXHIBITS** |**Exhibit-P1**|**PHOTOCOPY OF THE ORIGINAL PETITION**| |---|---| ||**NO.857/2021 FILED BEFORE THE FAMILY**| ||**COURT, ERNAKULAM**| |**Exhibit-P2**|**PHOTOCOPY OF THE RECEIPT OF FEES DATED**| ||**09.11.2020**<br>**ISSUED**<br>**FROM**| ||**DR.N.INTERNATIONAL, ENGLISH MEDIUM**| ||**SCHOOL, NORTH PARAVUR**| |**Exhibit-P3**|**PHOTOCOPY OF THE RECEIPT OF FEES DATED**| ||**04.11.2021**<br>**ISSUED**<br>**FROM**| ||**DR.N.INTERNATIONAL, ENGLISH MEDIUM**| ||**SCHOOL, NORTH PARAVUR**| |**Exhibit-P4**|**PHOTOCOPY OF THE RECEIPT OF FEES DATED**| ||**11.01.2022**<br>**ISSUED**<br>**FROM**| ||**DR.N.INTERNATIONAL, ENGLISH MEDIUM**| ||**SCHOOL, NORTH PARAVUR**| |**Exhibit-P5**|**PHOTOCOPY OF THE RECEIPT OF FEES DATED**| ||**29.04.2022**<br>**ISSUED**<br>**FROM**| ||**DR.N.INTERNATIONAL, ENGLISH MEDIUM**| ||**SCHOOL, NORTH PARAVUR**| |**Exhibit-P6**|**PHOTOCOPY OF THE I.A NO.1769/2022**| ||**DATED 29.03.2022 FILED IN I.A**| ||**NO.1853/2021 IN O.P NO.857/2021 BEFORE**| ||**THE FAMILY COURT, ERNAKULAM**| |**Exhibit-P7**|**PHOTOCOPY OF THE JUDGMENT DATED**| ||**28.03.2022 PASSED BY THIS HON'BLE**| ||**COURT IN O.P (F.C) NO.139/2022**| |**Exhibit-P8**|**PHOTOCOPY OF THE I.A NO.2081/2022**| ||**DATED 08.04.2022 FILED IN O.P**| ||**NO.857/2021 BEFORE THE FAMILY COURT,**| ||**ERNAKULAM**| **9** O.P.(FC) No.439 of 2022 ## **Exhibit-P9** - **PHOTOCOPY OF THE COUNTER AFFIDAVIT IN I.A NO.1769/2022 DATED 08.04.2022 FILED IN I.A NO.1853/2021 IN O.P NO.857/2021 BEFORE THE FAMILY COURT, ERNAKULAM** - **Exhibit-P10 PHOTOCOPY OF THE I.A NO. 2257/2022 DATED 18.04.2022 FILED IN O.P NO.857/2021 BEFORE THE FAMILY COURT, ERNAKULAM** - **Exhibit-P11 PHOTOCOPY OF THE JUDGMENT DATED 06.05.2022 PASSED BY THIS COURT IN O.P (F.C) NO.250/2022** - **Exhibit-P12 PHOTOCOPY OF THE ORDER DATED 13.06.2022 IN I.A NO.2257/2022 IN I.A NO.1853/2021 IN O.P NO.857/2021 PASSED BY THE FAMILY COURT, ERNAKULAM** - **Exhibit-P13 PHOTOCOPY OF THE PROOF AFFIDAVIT IN M.C.NO.48/2018 DATED 23.05.2022 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NORTH PARAVUR**