W.A.No.674 of 2022

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944** **WA NO. 674 OF 2022** **AGAINST THE JUDGMENT DTD 26/5/2022 IN WP(C) 14963/2022 OF HIGH COURT** **OF KERALA** ## **APPELLANT/4TH RESPONDENT:** **ANEESH PHILIPOSE, AGED 44 YEARS, S/O. K. PHILIPOSE JOSEPH FLAT NO: 6B, MATHER EL CASTILLO, JAWAHAR NAGAR KADAVANTHARA, PIN - 682020** **BY ADVS.SRI.S.SREEKUMAR, Sr. SMT.R.LEELA** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3:** - **SHERIN KURUVILLA, AGED 41 YEARS,** - **1. D/O.T.V.KURUVILLA, TC 2/3374, NO.7, NEAR SKYLANE MAPLE HEIGHTS FLAT, PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004** - **NEIL ANEESH PHILIPOSE (MINOR), AGED 13 YEARS, S/O.SHERIN** - **2. KURUVILLA, TC 2/3374, NO.7, NEAR SKYLANE MAPLE HEIGHTS FLAT, PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004** **3. DAVE ANEESH PHILIPOSE (MINOR), AGED 9 YEARS, S/O.SHERIN KURUVILLA, TC 2/3374, NO.7, NEAR SKYLANE MAPLE HEIGHTS FLAT, PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004** **4. RYAN ANEESH PHILIPOSE (MINOR), AGED 6 YEARS S/O.SHERIN KURUVILLA,TC 2/3374, NO.7, NEAR SKYLANE MAPLE HEIGHTS FLAT, PATTOM P.O.,** 2 **W.A.No.674 of 2022** **THIRUVANANTHAPURAM, PIN - 695004** **RESPONDENTS 2 TO 4 BEING MINORS ARE REP.BY THEIR MOTHER, 1ST RESPONDENT SHERIN KURUVILLA.** **5. CENTRAL BOARD OF SECONDARY EDUCATION, REPRESENTED BY ITS CHAIRMAN, SIKSHA KENDRA-2,COMMUNITY CENTRE, PREET VIHAR DELHI, PIN - 100992** - **THE REGIONAL OFFICER, CENTRAL BOARD OF SECONDARY** - **6. EDUCATION, REGIONAL OFFICE, BLOCK B, 2ND FLOOR, LIC DIVISIONAL OFFICE CAMPUS, PATTOM, THIRUVANANTHAPURAM, PIN - 695004** **7. THE PRINCIPAL, GLOBAL PUBLIC SCHOOL THIRUVANIYOOR P.O. CHOTTANIKARA ROAD KOCHI., PIN – 682308** **BY ADVS.SRI.S.JAYAN FOR R1 SRI.NIRMAL S., STANDING COUNSEL FOR R5 AND R6 SRI.SANTHOSH MATHEW FOR R7** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **W.A.No.674 of 2022** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------W.A.No.674 of 2022** **------------------------------------------Dated this the 9[th] day of June, 2022** ## **J U D G M E N T** ## **C.S.Sudha, J.** This appeal is filed against the judgment dated 26/05/2022 in W.P.(C) No.14963/2022. The appellant is the 4[th] respondent in the writ petition. The first respondent herein is the wife of the appellant and respondents 2 to 4 are their children. Respondents 1 to 4 were the petitioners in the writ petition. The 7[th] respondent herein, namely, the Principal, Global Public School, Kochi, where the children were studying, is the third respondent in the writ petition. The parties in this appeal will be referred to as described in the writ petition. 2. The petitioners moved the writ petition praying for a direction to the third respondent to issue the transfer certificates of petitioners 2 to 4 on the application submitted by the first petitioner and to issue a direction to the third respondent not to insist for a joint application of the 4 ## **W.A.No.674 of 2022** parents, that is, of the first and fourth respondents. The first petitioner alleged that due to marital discord, she along with the children have shifted their residence to Thiruvananthapuram, where she is residing on rent in the house of a friend. As the academic year was about to commence, she wanted her children to be admitted in Sarvodaya Central Vidyalaya, Thiruvananthapuram, for which she submitted an application to the 3[rd] respondent for obtaining transfer certificates. However, the 3[rd] respondent refused to issue the certificates and insisted that the consent of the fourth respondent, her husband and the father of the children, was necessary. The fourth respondent objected to the issuance of the certificates and hence the Writ Petition. 3. The learned single Judge by the impugned judgment allowed the prayers in the writ petition. Aggrieved, the fourth respondent in the writ petition, the husband of the first petitioner and the father of petitioners 2 to 4, has come up in appeal. 3. Heard Sri.S.Sreekumar, the learned Senior Advocate, and Smt.Leela R., the learned counsel for the appellant and Sri.S.Jayant, the 5 ## **W.A.No.674 of 2022** learned counsel for the first respondent ; Sri.Nirmal S., the learned Standing Counsel for respondents 5 and 6 and also Sri.Santhosh Mathew, the learned counsel for the 7[th] respondent. 4. It was submitted on behalf of the fourth respondent that, after his marriage to the first petitioner, they started residence in Dubai, where he was gainfully employed. Petitioners 2 to 4 were born in the wedlock. The entire family was living in quite affluence circumstances. However, with the onset of the Covid pandemic, the fourth respondent lost his job and hence he had to return with his family to Ernakulam. The first petitioner in the meantime developed health issues, pursuant to which she had to undergo a surgery for the removal of thyroid. After surgery, the first petitioner started behaving abnormally and on two occasions she went missing from her residence. Later on, she reappeared on her own accord. Thereafter she expressed her desire to spend a few days with her twin sister, which was not objected to by the fourth respondent keeping in mind her health issues. The first respondent left for her sister's residence along with her three children. The first petitioner's sister after a few days, informed the 6 **W.A.No.674 of 2022** fourth respondent that the former and her children are missing. On enquiry, the fourth respondent came to know that she is residing in Thiruvananthapuram with a friend. 4.1. It is submitted that the fourth respondent is only interested in the welfare of his children and therefore, despite the marital discord, he is ready to take back his wife and children and maintain them. He is even ready to offer his apartment at Kadavanthra for the exclusive residence of his wife and children. He also submitted that he would keep away from the aforesaid residence and set up residence separately. He only wants his children to be back in Ernakulam, if not, the first petitioner would make all efforts to separate him from his children. He has already moved the Family Court, Ernakulam for restitution of conjugal rights and for custodial rights of the children. In fact, in the said proceedings, he had also moved an application for injuncting the school authorities from issuing the transfer certificates, to which application, the first petitioner had also filed her objections. Before the Family Court could pass orders, the first petitioner moved this Court and obtained the impugned order. 7 ## **W.A.No.674 of 2022** 5. When the learned counsel for the petitioners was asked whether the first petitioner was ready to accept the offer made by the fourth respondent, the answer was in the negative. It was submitted that the first petitioner has shifted her residence to Thiruvananthapuram because employment opportunities are better in Thiruvananthapuram and so she is not ready to come back. To a query as to what prompted the petitioners to move this Court and obtain an order under Article 226 when an equally efficacious alternate remedy of approaching the Family Court was available and when in fact the Family Court is also seized of the matter, the learned counsel was unable to give a satisfactory answer. 6. It is well settled that the jurisdiction of the High Court under Art.226 of the Constitution is equitable and discretionary. The power under the Article can be exercised by the High Court "to reach injustice wherever it is found”. ( **Uttar Pradesh State Sugar Corporation Limited v. Kamal Swaroop Tondon (2008 (2) SCC 41** )) 7. It is also a settled position that the High Court do not ordinarily entertain a writ petition under Art.226 of the Constitution of India 8 ## **W.A.No.674 of 2022** if an effective alternative remedy is available to the aggrieved person or if the statute itself provides for a mechanism for redressal of the grievance. It is also well settled that alternative remedy does not act as an absolute bar for entertaining a writ petition where the vires of any statutory provision is under challenge or the order impugned is completely without jurisdiction or has been passed in clear violation of the principles of natural justice ( **Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 : AIR 1999 SC 22)** . 8. Though the existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226, a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. ( **Assistant Commissioner of State Tax v. Commercial Steel Ltd., MANU/SC/0801/2021)** . 9. It is also true that the rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not 9 ## **W.A.No.674 of 2022** exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed. One must also remember that the alternative remedy must be efficacious. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in the decision in **L. Chandra Kumar v. Union of India, AIR 1997 SC1125.** 10. In **Thansingh Nathmal v. Superintendent of Taxes, AIR 1964 SC 1419** it has been held that the jurisdiction of the High Court under Art.226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised 10 ## **W.A.No.674 of 2022** subject to certain self - imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. 11. In the present case, none of the above exceptions has been established. We strongly deprecate the practice of the parties rushing to this Court under Article 226, when an equally efficacious alternate remedy is available to them. The petitioners have no case that the remedy available before the Family Court is not efficacious or efficient. They do not have a case that though they had moved the Family Court, their stand was not heard or that the matter was not considered in spite of their request. Therefore, it is beyond our comprehension as to what prompted the first petitioner to rush to this Court and obtain an order. 12. The learned single Judge after interacting with the children, during which time the children expressed their desire to go with 11 ## **W.A.No.674 of 2022** their mother, allowed the prayers in the writ petition, keeping in mind the welfare of the children. It is true that in matters relating to custody of children, it is the welfare of the children that is paramount. However, the same cannot be decided in a proceeding under Article 226 as several disputed facts are involved. In this case, the first petitioner alleges domestic violence and marital discord, which according to her affected the well-being of the children and hence the reason why she decided to live separately and away from her husband, the fourth respondent. The fourth respondent on the other hand deny the allegation of domestic violence and contends that the first petitioner has serious health issues; that after her thyroid operation, she is not normal ; that she has no source of income ; that she is now living at the mercy of her male friend, who according to the fourth respondent, is a man of doubtful character ; that continued residence of the children in the company of such a person in all likelihood would affect the well-being of the children and so it is absolutely necessary that the children be taken out of his influence and brought back to Ernakulam. It is also submitted that the children were studying in Global Public School, Ernakulam, where fees for the next 12 ## **W.A.No.674 of 2022** academic year have also been remitted. All the three children have been promoted to their next higher class. If the children are all on a sudden taken away from the said atmosphere of the school and planted in a new School with a completely different syllabus, that may seriously affect the well-being of the children. 13. We do not express any opinion on the allegations and counter allegations made, as these are matters to be adjudicated by the Family Court. Since these are disputed facts, unless the pleadings raised by the parties are examined with reference to evidence by an appropriate forum, a proper decision in the matter cannot be taken and such a course is impossible in a summary proceeding such as a writ petition. Without expressing any view on the allegations and counter allegations raised in this case and making it clear that it is neither appropriate nor feasible in the present proceedings to investigate the correctness of the same and decide one way or the other, we propose to relegate the parties to work out their respective rights in the Family Court where proceedings are already pending consideration. Art.226 a discretionary jurisdiction is to be exercised on equitable grounds. The 13 ## **W.A.No.674 of 2022** exercise of the said jurisdiction shall only be in furtherance of the interests of justice and not merely on making out a legal point or a technicality. In other words, the jurisdiction under Art.226 cannot be exercised if the exercise of the jurisdiction would confer on the applicant undue advantages / favours and deprive the opposite party benefits which they are legitimately entitled to. Needless to say, in exercise of the said jurisdiction, the High Court cannot do anything inequitable, for those who seek equity must bow to equity. 14. Nevertheless, we need to take into account the welfare of the children also. Admittedly the transfer certificates have been issued by the third respondent pursuant to the impugned order. It is also submitted on behalf of the petitioners that the children have been admitted in the School at Thiruvananthapuram and the fees for the coming academic year has also been remitted. Therefore, we do not intend to disturb the children now. For the time being, the children can continue their education in the School at Thiruvananthapuram. However, as the guardianship issue is pending before the Family Court, it is the said court which is the appropriate forum to decide the issue. Hence, we set aside the impugned order and relegate the parties to 14 ## **W.A.No.674 of 2022** the Family Court, which court shall decide the issue involved in Ext.P10 interlocutory application in O.P.No.3087/2021 pending before the Family Court, Ernakulam, afresh, untrammeled by any of the observations made by us in this order. Ext.P10 shall be disposed of by the Family Court, Ernakulam, as expeditiously as possible. Writ appeal is disposed of accordingly. All interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/ 15 ## **W.A.No.674 of 2022** ## **APPENDIX** ## **APPELLANT'S ANNEXURES** **ANNEXURE A :- TRUE COPY OF O.P.NO.3087/2021 FILED BEFORE THE FAMILY COURT, ERNAKULAM.** **ANNEXURE B :- THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN I.A.NO.2173/2022 IN O.P.NO.3087/2021.** **ANNEXURE C :- THE TRU COPY OF THE PETITION FILED BEFORE THE FAMILY COURT, ERNAKULAM, AS I.A.NO.2813/2022 IN O.P.NO.3087/2021.** **ANNEXURE D :- THE TRUE COPY OF THE OBJECTION IN IA NO.2813/2022 IN O.P.NO.3087/2021 FILED BY THE 1ST RESPONDENT.**