Sulfikkar K. V. v. Nijina

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 17[TH] DAY OF JANUARY 2023/27TH POUSHA, 1944 ``` ``` OP (FC) NO. 23 OF 2023 ``` ``` AGAINST THE ORDER DATED 23.12.2022 IN I.A.NO.7 OF 2022 IN GOP NO.1249 OF 2021 OF THE FAMILY COURT, THRISSUR PETITIONERS/RESPONDENTS: ``` - **`1 SULFIKKAR K. V, AGED 36 YEARS, S/O SUBAIR, KODUNGUKKARAN HOUSE, CHENTHRAPPINNY VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT - 680687`** - **`2 SULTHAN SAMEEN, AGED 6 YEARS, S/O SULFIKKAR. K.V, KODUNGUKKARAN HOUSE, CHENTHRAPPINNY VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT – 680 687, REPRESENTED BY 1ST PETITIONER`** ``` BY ADVS.P.T.MARY R.S.REJITHA BENRAJ K.R. ACHUTHAN K. NANDA SURENDRAN ``` ## **`RESPONDENT/PETITIONER:`** ``` NIJINA, AGED 29 YEARS, D/O ASHIK, AMBALATH HOUSE, PERMANNU DESAM, ERANELLUR VILLAGE, KUNNAMKULAM TALUK, THRISSUR DISTRICT - 680501 ``` ``` BY ADV MAHESH V MENON ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- O.P.(FC)No.23 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The 1[st] petitioner is the respondent in O.P.No.1249 of 2021 on the file of the Family Court, Thrissur, which is one filed by the respondent herein seeking permanent custody of the minor child by name Sulthan Sameen, presently aged 6 years. In that original petition, the respondent filed I.A.No.2 of 2021 seeking interim custody of the minor child. After considering the rival contentions, the Family Court passed Ext.P5 order dated 18.11.2021, whereby that interlocutory application was allowed. Paragraph 5 of the said order reads thus; “5. The minor was produced before me and I had opportunity to interact with the child in the presence of both parties. At the time of production it was submitted that the petitioner is seeing the minor after a long period of 1 ½ years. The minor expressed only a formal acquaintance with the petitioner. A strong emotional bonding is visibly absent in the conduct of the minor. Admittedly the child is residing with the respondent for the last few years. Considering the terms and conditions in the mubara’at I am of the view that the existing living environment of the minor need not be altered as the same may upset the emotional temperament of the child. But it is equally -3- O.P.(FC)No.23 of 2023 important that the minor shall have sufficient opportunity to interact with the petitioner who is none other than his mother. Therefore, I am inclined to allow the petitioner to have interim custody of the child from 10 am on every 2[nd] Saturday till 5 pm on the following Sunday and also during the first half of Onam, Christmas and summer vacations. 2. Alleging violation of Ext.P5 order granting interim custody, the respondent filed I.A.No.7 of 2022 (Ext.P8), in which the Family Court passed Ext.P9 order dated 23.12.2022, whereby the 1[st] petitioner is directed to handover custody of the minor child by 10.00 a.m. on 24.12.2022, in compliance of the order in I.A.No.2 of 2022, and listed the matter on 30.12.2022, for reporting compliance. Challenging Ext.P9 order dated 23.12.2022, the petitioners are before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. On 13.01.2023, when this original petition came up for consideration as un-numbered, this Court noticed that due to a typographical mistake committed by the Family Court, Thrissur, the date of Ext.P9 is wrongly shown as 04.03.2022 in the cause title of that order. The correct date is shown on the -4- ## O.P.(FC)No.23 of 2023 bottom portion. In such circumstances, by the order dated 13.01.2023, this Court directed the Registry to number this original petition and list for admission on 16.01.2023 at 10.15 a.m. By the said order, the petitioner was directed to file an application to obtain corrected copy of Ext.P9 order of the Family Court, Thrissur on 16.01.2023 and the said Court was directed to issue corrected copy of Ext.P9 on that day itself. 4. On 16.01.2023, when this matter came up for consideration, the respondent entered appearance through counsel. 5. Heard the learned counsel for the petitioners and also the learned counsel for the respondent. 6. The learned counsel for the petitioners would submit that in terms of the order of this Court dated 13.01.2023, the 1[st] petitioner has already made an application for corrected copy of Ext.P9 order. 7. The learned counsel for the respondent would point out that despite granting repeated opportunities, the 1[st] petitioner has not chosen to comply with the direction contained in Ext.P5 order dated 18.11.2022 in I.A.No.2 of 2021 in G.O.P.No.1249 of 2021 and it was in such -5- ## O.P.(FC)No.23 of 2023 circumstances that the Family Court has issued Ext.P9 order dated 23.12.2022 in I.A.No.7 of 2022. That interlocutory application is even now pending consideration before the Family Court. 8. 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. 9. In **Shalini Shyam Shetty v. Rajendra Shankar 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 -6- O.P.(FC)No.23 of 2023 confidence in the functioning of the tribunals and courts subordinate to the High Court. ## 10. 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 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 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. 11. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex -7- O.P.(FC)No.23 of 2023 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. 12. 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 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. 13. In view of the law laid down in the decisions -8- O.P.(FC)No.23 of 2023 referred to supra, the High Court in 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 justice. Therefore, no interference under Article 227 is called for, unless the High 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 or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 14. After arguing for some time, the learned counsel for the petitioners would submit that the 1[st] petitioner shall produce the minor child before the Family Court, Thrissur on -9- O.P.(FC)No.23 of 2023 ## 20.01.2023. Having considered the materials on record and also the submissions made by the learned counsel on both sides, we deem it appropriate to dispose of this original petition without interfering with Ext.P9 order, by recording the submission made by the learned counsel for the petitioners that the 1[st] petitioner shall produce the minor child before the Family Court on 20.01.2023. On production of the minor child, the Family Court shall take an appropriate decision as to the further course to be taken in the matter, by passing appropriate orders in I.A.No.7 of 2022 in O.P.No.1249 of 2021, after interacting with the minor child. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/17/1 -10- O.P.(FC)No.23 of 2023 ## **`APPENDIX OF OP (FC) 23/2023`** ``` PETITIONER EXHIBITS ``` ``` ExhibitPP1 TRUE COPY OF THE MUBARATH AGREEMENT SIGNED BETWEEN THE 1ST PETITIONER AND THE RESPONDENT DATED 7/1/2021 ``` ``` Exhibit P2 TRUE COPY OF THE GUARDIAN O.P, 1249/2021 FILED BY THE RESPONDENT BEFORE THE HONOURABLE FAMILY COURT THRISSUR DATED 12/7/2021 ``` ``` ExhibitP3 TRUE COPY OF THE INTERIM CUSTODY PETITION I.A. 02/2021 IN O.P. 1249/2021 FILED BY THE RESPONDENT BEFORE THE HONOURABLE FAMILY COURT, THRISSUR. ``` - **`Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. 02/2021 IN O.P.1249/2021 FILED BY THE 1ST PETITIONER BEFORE THE HONOURABLE FAMILY COURT, THRISSUR.`** ``` ExhibitP5 TRUE COPY OF THE COMMON ORDER PASSED BY THE HONOURABLE FAMILY COURT THRISSUR IN I.A. 02/2021 IN O.P 1249/2021.DATED 18/11/21 ``` - **`Exhibit P6 TRUE COPY OF I.A. 11/2022 FILED BY THE RESPONDENT FOR THE VIOLATION OF I.A.02/2021 IN O.P 1249/2021 DATED 21/9/2021.`** ``` Exhibit P7 TRUE COPY OF THE OBJECTION IN INTERIM CUSTODY PETITION I.A. 11/2022 IN O.P. 1249/2021 FILED BY THE PETITIONERS/RESPONDENTS BEFORE THE HONOURABLE FAMILY COURT, THRISSUR. DATED 26/9/2022 ``` -11- O.P.(FC)No.23 of 2023 |**`ExhibiP8`**|**`TRUE COPY OF THE INTERIM CUSTODY`**| |---|---| ||**`PETITION I.A. 07/2022 IN O.P.`**| ||**`1249/2021 FILED BY THE RESPONDENT`**| ||**`BEFORE THE HONOURABLE FAMILY COURT,`**| ||**`THRISSUR.DATED 26/9/2022`**| |**`Exhibit9`**|**`TRUE COPY OF THE ORDER DATED`**| ||**`23/12/2022 IN I.A. 07/2022 COMPLIANCE`**| ||**`WITH THE ORDER IN I.A. 02/2021 IN`**| ||**`O.P. 1249/2021.`**|