Kerala High Court
Suneeshkumar vs Bhuvaneswari on 2 February, 2016
Author: Shaji P. Chaly
Bench: C.K.Abdul Rehim, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938
RP.No. 273 of 2016 (R) IN OP (FC).581/2015
--------------------------------------------
AGAINST THE JUDGMENT IN OP (FC) 581/2015 of HIGH COURT OF KERALA
DATED 02-02-2016
------------------------
REVIEW PETITIONER(S)/RESPONDENT::
---------------------------------------------------------
SUNEESHKUMAR, AGED 41 YEARS,
S/O.LATE SUDHAKARAN,
RESIDING AT 'VARNAM' PUNNAMOODU,
VARKALA VILLAGE, THIRUVANANTHAPURAM DISTRICT.
BY ADVS. SRI.M.R.RAJESH
SMT.E.S.SANDHYA
RESPONDENT(S)/PETITIONER::
----------------------------------------------
BHUVANESWARI, AGED ABOUT 70 YEARS,
W/O.LATE GOPALAN,
KOLLAMPARAMBIL VEEDU, IRINGALAKUDA
THRISSUR DISTRICT, THANISSERI P.O.
BY SRI.SANTHOSH P.PODUVAL
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 31-03-2016,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RP.No. 273 of 2016 (R) IN OP (FC).581/2015
------------------------------------------------------------
APPENDIX
PETITIONER'S EXHIBITS:
EXT. A:TRUE COPY OF THE DOCUMENT SCHEDULE FILED BY THE RESPONDENT
HEREIN IN O.P.No.1175/2015 OF FAMILY COURT, ATTINGAL.
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
STK
C.K. ABDUL REHIM
&
SHAJI P. CHALY, JJ.
-------------------------------
Review Petition No.273 of 2016
in
O.P.(F.C.) No.581/2015
----------------------------------------------
Dated this the 31st day of March, 2016
ORDER
C.K. Abdul Rehim, J The petitioner herein is the 1st respondent in O.P. (F.C.)No.581/2015, seeking review of the judgment dated 02.02.2016. O.P.(F.C.)581/2016 arose from an order passed by the Family Court, Attingal in O.P.(G&W)No. 1175/2015. It is a case instituted by the petitioner herein seeking guardianship and custody of two minor children, on the basis that he is the father of the minors. The respondent before the court below is maternal grandmother of the minor children. She had filed another case before the Family Court, Irinjalakuda with respect to guardianship and custody of the minors, as O.P.(G&W) No.923/2015. That court had issued an interim order Review Petition No.273 of 2016 2 restraining the petitioner herein from taking custody of the minor children forcefully. The Family Court, Attingal passed an order in O.P.(G&W)1175/2015 directing the respondent herein to produce the children before the Family Court at Irinjalakuda on 23.11.2015 and to handover custody to the petitioner herein. The said order is passed after taking note of the fact that O.P.(G&W) No.923/2015 is pending before the Family Court, Irinjalakuda. The order directing production of minors was challenged by the respondent herein in O.P.(FC) 581/2015.
2. While disposing the said original petition, this court has taken note of the fact that 2 cases are pending with respect to the same subject matter, custody of the minor children, in two different Family Courts within the State, between the same parties. It is further noticed that this court had already issued a direction to the Family Court, Irinjalakuda to consider the question of maintainability, vide: judgment in O.P.(FC)1/2016, which is filed by the petitioner herein. It was also brought to Review Petition No.273 of 2016 3 the notice of this court that O.P.(G&W)1175/2015 stands transferred to the Family Court, Ernakulam. Having found that the Family Court, Attingal had passed the order without taking note of the above said circumstances, the said order was quashed. The Family Court, Ernakulam was directed to pass appropriate fresh orders with respect to the question of granting interim custody.
3. The above Review Petition is filed seeking removal of certain observations contained in the judgement in O.P.(F.C.)No.581/2015. It is pointed out that there is an observation made by this court to the effect that the Family Court, Attingal is erred in passing the impugned order directing to handover the custody of the minor children to the respondent (petitioner herein) when it is brought to its notice that another case is pending before the Family Court, Irinjalakuda, and that an interim order passed by that court is in force. Further it is pointed that, direction issued by this court to the Family Court, Ernakulam to take into consideration of Review Petition No.273 of 2016 4 pendency of the other case before Family Court, Irinjalakuda and also to take note of orders if any passed by that court on the question of jurisdiction, create prejudice to the petitioner herein. Learned counsel appearing for the petitioner contended that, those observations were unwarranted since it will restrain the Family Court, Ernakulam from passing fresh orders with respect to interim custody of the children, till the matter is decided by the Family Court at Irinjalakuda.
4. We are of the considered opinion that there is no error apparent on the face of the judgment, warranting review. As observed in the judgment itself, the position remains that two cases are pending before separate Family Courts with respect to custody of the same minor children, between the same parties. Section 14 of the Guardian and Wards Act, 1890 provides that, if proceeding for appointment of guardian of a minor are taken in more courts than one, each of those courts shall on being appraised of the proceedings in the other court, stay the proceedings before itself. Sub Section 2 of Review Petition No.273 of 2016 5 Section 14 provides that, if both the courts in such case are subordinate to the same High Court, they shall report the case to the High Court and it is for the High Court to determine that in which of the courts the proceedings shall be have. Therefore it is evident that the court which came to notice about pendency of another matter before another Family Court, ought to have kept pending the proceedings before that court, and have referred the matter for decision of this court. Therefore in our considered opinion there is no error or illegality in the findings contained in the judgment, which need to be corrected in the Review Petition.
5. On the facts of the case, it is evident that this court had already issued direction to the Family Court, Irinjalakuda to decide the question of maintainability, based on the ground of territorial jurisdiction. Therefore the other court before which the same matter is pending is bound either to wait till the decision of maintainability of the case before the other Family Court or to refer the matter for decision of the High Court under Section 14. Review Petition No.273 of 2016 6
6. Since it is found that there exists no ground for review of the judgment, the petition fails and the same is hereby dismissed.
Registry will forward a copy of the order to the Family Courts at Ernakulam and Irinjalakuda.
Sd/-
C.K. ABDUL REHIM JUDGE Sd/-
SHAJI P. CHALY JUDGE STK //TRUE COPY// //P.A. TO JUDGE//