Steffy v. Suresh Babu @ George

# **`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 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 OP (FC) NO. 74 OF 2023 ``` ``` AGAINST THE ORDER DATED 15.12.2022 IN I.A.No.10 of 2022 IN I.A.No.6 of 2021 IN O.P(G&W)No.57 of 2019 OF FAMILY COURT, IRINJALAKUDA ``` ## **`PETITIONER/S:`** ``` STEFFY, AGED 31 YEARS D/O. JOSE, CHIRAKKEKKARAN HOUSE, MADAYIKONAM VILLAGE & P.O., MAPRANAM DESOM, MUKUNDAPURAM TALUK, PIN - 680712 ``` ``` BY ADVS. DHANYA P.ASHOKAN M.R.VENUGOPAL S. MUHAMMAD ALIKHAN ``` ## **`RESPONDENT/S:`** ``` SURESH BABU @ GEORGE S/O. VATHAKODATH JOSEPH, PUTHUPPALLY VILLAGE & P.O., KOTTAYAM TALUK & DISTRICT, PIN - 686011 ``` ``` BY ADV V.P.MOHAMMED NIYAZ ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOL- LOWING: ``` 2 OP (FC) NO. 74 OF 2023 ## **JUDGMENT** Anil K. Narendran, J. The petitioner is the 1[st] respondent-mother in O.P(G&W)No.57 of 2019, which is one filed by the respondent herein-father to declare him as the guardian of the minor child and to allow custody of the child. Another relief sought in that original petition is a permanent prohibitory injunction restraining the respondents or anybody under them from forcibly taking away the minor child from the custody of the father. The petitioner is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India, seeking an order to set aside Ext.P11 order dated 15.12.2022 of the Family Court, Irinjalakuda in I.A.No.10 of 2022 in I.A.No.6 of 2021 in O.P(G&W)No.57 of 2019, whereby that interlocutory application stands dismissed. 2. On 09.02.2023, when this original petition came up for admission, this Court issued notice on admission to the respondent by speed post, returnable within three weeks. While ordering the original petition to be listed today for further consideration, this Court granted an interim stay of Ext.P8 order dated 26.08.2022 in I.A.No.6 of 2021 in O.P(G&W)No.57 of 2019 on the file of the Family Court, Irinjalakuda for a period of one 3 OP (FC) NO. 74 OF 2023 month. 3. Heard the learned counsel for the petitioner-mother and also the learned counsel for the respondent-father. 4. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P11 order dated 15.12.2022 of the Family Court, Irinjalakuda in I.A.No.10 of 2022 in I.A.No.6 of 2021 in O.P(G&W)No.57 of 2018. 5. I.A.No.6 of 2021 in O.P(G&W)No.57 of 2019 is one filed by the respondent-father seeking interim custody of the minor child for a period of one month, for the reasons stated in the affidavit filed in support of that interlocutory application. That interlocutory application was disposed of by the order dated 26.08.2022, whereby the respondent-father was permitted to give treatment as recommended by the medical board from National Institute of Physical Medicine and Rehabilitation (NIPMR), Irinjalakuda, in the presence of the petitioner-mother. The respondent-father was directed to meet necessary expenses in that regard. Apart from that, the father is given custody of the child on every second and fourth Sundays from 10:00 a.m. to 04:00 p.m. in the court premises for the time being. Seeking 4 OP (FC) NO. 74 OF 2023 review of the said order dated 26.08.2022, insofar as it directs the treatment of minor in MIPMR, the petitioner-mother filed I.A.No.10 of 2022 in I.A.No.6 of 2021. The respondent-father filed objection dated 12.12.2022. Thereafter, the Family Court passed Ext.P11 order, which reads thus; “This petition is filed u/s. 151 of the Civil Procedure Code to exempt minor Ivan from treatment along with other deferentially abled children at NIPMR, Kallettumkara. Order in I.A.6/21 is ought to be received. The order is dated 26.08.2022, the petition is filed 16.11.2022, petition dismissed.” 6. In **Breen v. Amalgamated Engineering Union** **[1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v.** **Crabtree [1974 ICR 120]** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision - taker to the controversy in question and the decision or conclusion arrived at. 7. In **Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court has held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations 5 OP (FC) NO. 74 OF 2023 subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in **Gordhandas Bhanji’s case (supra)** , the Apex Court has reiterated in ## **Mohinder Singh Gill v. Chief Election Commissioner** **[(1978) 1 SCC 405]** that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. 8. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing** ## **Director, United Commercial Bank v. P.C. Kakkar [(2003)** **4 SCC 364]** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the 6 OP (FC) NO. 74 OF 2023 decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or - quasi judicial performance. 9. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a Court 7 OP (FC) NO. 74 OF 2023 of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 10. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that a cryptic order like Ext.P11 passed by the Family Court, Irinjalakuda, which contain no reasons whatsoever for dismissing I.A.No.10 of 2022 filed by the petitioner-mother, cannot be sustained in law. 11. In such circumstances, this original petition is allowed by setting aside Ext.P11 order dated 15.12.2022 and directing the Family Court, Irinjalakuda, to consider and pass appropriate orders in 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. 12. On production of a certified copy of this judgment, the Family Court shall advance the case from 23.03.2023 and 8 OP (FC) NO. 74 OF 2023 thereafter take an appropriate decision in I.A.No.10 of 2022, as directed above. The interim order granted by this Court on 09.02.2023 shall continue to be in force till the disposal of I.A.No.10 of 2022. It is made clear that this Court has not expressed anything on the rival contentions raised by both sides and Ext.P11 order is set aside only for the reason stated hereinbefore. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** bkn/- 9 OP (FC) NO. 74 OF 2023 ## **`APPENDIX OF OP (FC) 74/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE GOP 57/2019 DATED 15/05/2018 FILED BY THE RESPONDENT BE- FORE THE FAMILY COURT IRINJALAKUDA ``` ``` Exhibit P2TRUE COPY OF THE IA 2/2020 DATED 18/02/2020 IN GOP 57/2019 ``` - **`Exhibit P3 TRUE COPY OF THE OBJECTION DATED 09/05/2022 IN IA 2/2020 FILED BY THE PETITONER`** - **`Exhibit P4 TRUE COPY OF THE MEDICAL REPORT OF THE MINOR CHILD DATED NIL`** - **`Exhibit P5 TRUE COPY OF THE OBJECTION TO THE MEDICAL REPORT DATED 25/08/2022 FILED BY THE PETITIONER`** - **`Exhibit P6 TRUE COPY OF THE IA 6/2021 DATED 15/12/2021 IN GOP 57/2019 FILED BY THE RESPONDENT`** - **`Exhibit P7 TRUE COPY OF THE OBJECTION DATED 13/01/2022 IN IA 6/2021 IN GOP 57/2019 FILED BY THE PETITIONER`** - **`Exhibit P8 TRUE COPY OF THE ORDER DATED 26/08/2022 IN IA 6/2021 IN GOP 57/2019 ISSUED BY THE FAMILY COURT, IRINJALAKUDA`** - **`Exhibit P9 TRUE COPY OF THE IA 10/2022 DATED 14/11/2022 IN IA 6/2021 IN GOP 57/2019 FILED BY THE PETITIONER`** - **`Exhibit P10 TRUE COPY OF THE OBJECTION DATED 12/12/2022 IN IA 10/2022 IN IA 6/2021 IN GOP 57/2019 FILED BY THE RESPONDENT`** - **`Exhibit P11 TRUE COPY OF THE ORDER DATED 15/12/2022 IN IA 10/2022 IN IA 6/2021 IN GOP 57/2019 ISSUED BY THE FAMILY COURT, IRINJALAKUDA`** 10 OP (FC) NO. 74 OF 2023 ``` RESPONDENT EXHIBITS ``` ``` Exhibit-R1True copy of the IA 11/2022 dated 12- 12-2022 filed by the petitioner G O.P. No.57/2029 on the file of Family Court, Irinjalakuda ```