Sreeja v. Rajesh Puliyankalath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 OP (FC).No. 1300 of 2011(R) --------------------------OP.1513/2008 of FAMILY COURT,THRISSUR .................... PETITIONER ----------------------- SREEJA.V, JAYA NIVAS, P.O.ALAGAPPA NAGAR, THRISSUR. BY ADV. SREEJA.V(PARTY-IN-PERSON) RESPONDENT(S): --------------- RAJESH PULIYANKALATH, HARISREE, THANKURUSSI P.O., PALGHAT - 678 671. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON 9.6.2011 DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. -----------------------------------------------** ## **O.P.(F.C.) No.1300 of 2011** ## **----------------------------------------------Dated 9[th] June, 2011.** ## **J U D G M E N T** ## **Joseph Francis, J.** This Original Petition is filed under Article 227 of the Constitution of India, with the following prayers : “(i) To quash and set aside the interim orders passed in I.A.5338 and I.A.No.695 ie to produce the minor son before the court and the notice issued to the police authorities for the said purpose (as the minor is ready for permanent custody provided the respondent takes accommodation/flat and school admission in NOIDA where he is presently working or also willing to see and talk to him if the respondent come to his present residence). Ext.P10 and Ext.P12. (i)(a) This Hon'ble Court may be pleased to, at least modify the orders in I.A.5338/2010 and I.A.695/2011 by giving direction to the respondent to meet the minor son in the address of petitioner shown in the cause title ie. visitation rights or in any other place like park or temple at a convenient time for both, if necessary, by giving direction to police officer to accompany the respondent as 'supplementary provision' under section 151 of the Code of Civil Procedure, 1908 for the purpose of the application (ie. for spending time and interaction with the minor son as prayed in the petition) instead of dragging the minor son forcefully before the crowded Family Court O.P.(FC) 1300/11 2 as the purpose of the code is to facilitate justice and further its ends. (ii) To direct the Family Court for expedite final hearing O.P.1513/08 which is pending for 6 years (without entertaining any interim applications) within 3 months from today.” 2. The facts of the case briefly are as follows : The petitioner herein is the respondent/wife in O.P.1513/08 on the file of the Family Court, Thrissur. The respondent(husband) herein is the petitioner in that Original Petition, which was filed by him for divorce under Section 13(1) of the Hindu Marriage Act. The marriage between the petitioner and the respondent took place on 7.6.1998 and a boy, namely, Adithya Rajesh was born in that wedlock on 23.6.2002 and now the boy is living with the petitioner and the boy is aged 8 years. In O.P.1513/08, the petitioner/husband in that Original Petition filed I.A.5338/10 for directing the respondent/wife to produce the minor child before Family Court and to provide the petitioner therein with sufficient orders to spend time and interact with the minor O.P.(FC) 1300/11 3 child. On 18.10.10, the petitioner and respondent were present and the Original Petition was posted for evidence on 27.11.2010. In I.A.5338/10, the respondent appeared and and the I.A. was posted for counter on 27.11.2010. Ext.P10 is the copy of the order in I.A.5338/10 in O.P.1513/08 on the file of the Family Court, Thrissur dated 29.1.2011. On 29.1.2011, the respondent/wife did not produce the child in the morning and she was directed to produce the child at 4 p.m., as the respondent/wife belongs to Thrissur and in spite of that direction also, the respondent/wife did not produce the child. The petitioner/husband filed I.A.695/11 to issue a direction to the Station House Officer to arrest and produce the minor son before the court. As per the order in that I.A. dated 26.3.2011, direction was issued to the S.H.O. to produce the minor child before the court on 29.3.2011. Ext.P12 is the copy of that order. Ext.P13 is the copy of the order in I.A.5338/10 dated 7.5.2011, in which it is stated that the child was not produced as per order dated 26.3.2011 and the Station House Officer O.P.(FC) 1300/11 4 filed report and fresh warrant was issued to find out the child and produce him on or before 10.6.2011. In this Original Petition, the petitioner is challenging Exts.P10 and P12 orders. 3. At the time of hearing on admission of this Original Petition, the petitioner appeared in person. The petitioner submitted that O.P.1513/08 is filed by the husband for divorce and in that proceedings, the Family Court is not justified in ordering production of minor child. That argument cannot be accepted, in view of the fact that as per Section 26 of the Hindu Marriage Act, in a proceeding under that Act, the court may, from time to time, pass such interim orders with respect to custody, maintenance and education of the minor children and such orders may be passed as interim orders in the proceedings and also at the time of passing of decree and even subsequent thereto. Non mentioning of Section 26 of the Act in I.A.5338/10 does not affect the substance of prayer for interim custody. Even when there is no formal application, or wrong section is mentioned, relief under Section 26 of the O.P.(FC) 1300/11 5 Hindu Marriage Act can be granted. 4. The petitioner invited our attention to the decision of the Supreme Court in **State of U.P. and Others. v. Roshan Singh (dead) by LRs. and Others** (AIR 2008 SC 1190), in which it was held that Section 151 of the Civil Procedure Code cannot be invoked when there is express provision even under which relief can be claimed by the aggrieved party. The petitioner produced copy of the judgment of High Court of Madras in **Kannatti @ Ramaswamy Gounder v. Anai Gounder** [CRP (PD) No.2172 of 2003] and copy of the judgment of the Delhi High Court in **Shri.Moinuddin v. Shri.Parvez** [CM (M) 1232/2007], in which it was held that civil court must disclose strong reasons and exceptional circumstances to pass an order for police assistance. 5. Section 25 of the Guardian and Wards Act provides that for the purpose of enforcing the order for return of ward, the court can cause the arrest of the ward and can be O.P.(FC) 1300/11 6 delivered into the custody of the guardian. Under Section 151 of the Civil Procedure Code, the court has got inherent power in order to do justice between the parties and to prevent the abuse of process of court to give direction to the police to render all aid to the parties with regard to the implementation of the order passed by the court. As per order in I.A.5338/10, the Family Court directed the respondent/wife to produce the child before the court, which was not complied with by the petitioner herein, and therefore, the Family Court is justified in giving police help, in order to cause the production of the child. Therefore, we find no ground to interfere with Exts.P10 and P12 orders passed by the Family Court. As regards the second prayer in the Original Petition is concerned, we called for a report from the Family Court, to which the Family Court gave a report, which is extracted below : “The learned Judge, Family Court, Thrissur informed that the divorce O.P. No. 1513 of 2008 was posted for evidence to 26.6.2010. Proof affidavits were filed by both O.P.(FC) 1300/11 7 sides on that date. The O.P. was posted to 11.8.2010. In the meanwhile, petition for interim custody was filed on 13.8.2010 and review of interim order was sought by the petitioner. The trial was, therefore, temporarily delayed in view of the application for interim custody and the Review Petition. The petitioner was absent on 27.11.2010 and 18.2.2011. The Court has now received a copy of the order dt.17.3.2011 in Family Court Appeal No.199/2009 in petition No. A 1724/2005 of Family Court, Bombay wherein the petitioner and respondent are the parties. Therein it is stated that the respondent husband should be present in Court on 15.4.2011 and the matter will be taken in Chambers at 3 p.m. The order also states: “In the meantime it is agreed that the proceedings in divorce petition No.1513/2008 between the parties pending before the Thrissur Family Court, Kerala remain in abeyance.” It was for this reason that the case was adjourned to 7.5.2011 for evidence.” O.P.(FC) 1300/11 8 6. From the report, it is clear that there is no laches on the part of the Family Court, Thrissur for the delay in the disposal of O.P.1513/2008. Therefore, it is not necessary to give any direction to the Family Court for early disposal of O.P.1513/2008. 7. Additional prayer i(a) was incorporated as per order in I.A.8034/2011. The petitioner submitted that it is not desirable to produce the minor child before the crowded court. The petitioner submitted that the orders in I.A.5338/10 and I.A.695/11 may be modified by giving direction to the respondent/husband to meet the minor son in the address of the petitioner or any other place like a park or a temple at a convenient time for both, if necessary. That prayer also cannot be allowed, as it is for the Family Court to ascertain the wishes of the minor child with regard to the custody and for that purpose, production of the child before the Family Court is necessary. Therefore, we find no merit in this Original Petition. 9 O.P.(FC) 1300/11 Accordingly this Original Petition is dismissed in limine, as it is without any merits. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy)