Kerala High Court
P.A.Muhammed Saleem vs Sumayya.K.S on 27 January, 2020
Bench: K.Harilal, C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
OP (FC).No.741 OF 2019
PETITIONER/S:
1 P.A.MUHAMMED SALEEM, AGED 59 YEARS,
S/O.P.M.AHAMMED KANNU, PARAKKAVETTY HOUSE,
CHERAVALLY MURI, KAYAMKULAM P.O.,
KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT,
REPRRESENTED BY HIS POWER OF ATTORNEY HOLDER
MR.ANAS.C.A., S/O.ABDU RAHIM, RESIDING AT
CHANDANAKUNNEL HOUSE, PERUNNA EAST P.O.,
CHANGANACHERRY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 102.
2 ZEENA, AGED 53 YEARS,
W/O.P.A.MUHAMMED SALEEM, PARAKKAVETTY HOUSE,
CHERAVALLY MURI, KAYAMKULAM P.O., KAYAMKULAM VILLAGE,
ALAPPUZHA DISTRICT, REPRRESENTED BY HIS POWER OF
ATTORNEY HOLDER MR.ANAS.C.A., S/O.ABDU RAHIM,
RESIDING AT CHANDANAKUNNEL HOUSE, PERUNNA EAST P.O.,
CHANGANACHERRY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 102.
BY ADVS.
SRI.M.P.MADHAVANKUTTY
SHRI. SHIJOY JOHN MATHEW
RESPONDENT/S:
SUMAYYA.K.S., AGED 25 YEARS, D/O.E.A.SULAIMAN,
POOMKURINJIYIL HOUSE, PALLICKACHIRA P.O.,
PAIPADU VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 537.
R1 BY ADV. SRI.S.SUBHASH CHAND
THIS OP (Family Court) HAVING BEEN FINALLY HEARD ON 27.01.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No.741 OF 2019
2
JUDGMENT
Dias, J This original petition is filed under Article 227 of the Constitution of India, challenging Ext.P12 order passed by the Family Court, Thiruvalla in E.A.No. 25/2019 in E.P.No.39/2018, directing the amin of the court to take custody of the petitioners and the minor child with the assistance of the police and produce them in court within a period of one month.
2. The petitioners in this original petition are the judgment debtors 2 and 3 in the execution proceedings. The respondent in this original petition is the decree holder. The 1 st judgment OP (FC).No.741 OF 2019 3 debtor, who is not a party in this original petition, is the son of the petitioners, the former husband of the respondent and the father of the minor child (hereinafter for the sake of convenience referred to as 'judgment debtor 1').
3. The brief facts of the case is that, the marriage between the judgment debtor 1 and the respondent was solemnized on 31.03.2012 and a minor child, by name, Minha Fathima, was born in the wedlock. Subsequently, there was an estrangement in the marital relationship, which led to the institution of proceedings before the Family Court. During the pendency of the proceedings, the parties were referred for mediation. The petitioners, judgment debtor 1 OP (FC).No.741 OF 2019 4 and the respondent executed Ext.P2 memorandum of mediation settlement agreement, settling all their disputes. The dispute regarding sharing the custody of the child was also agreed between the parties paragraph No.8 of Ext.P2 agreement. The Family Court recorded the memorandum of settlement agreement and disposed of the original petitions by Exts.P4 and P5 judgments. The marriage between the judgment debtor 1 and the respondent was dissolved by a decree of divorce and all monetary claims were also settled.
4. Subsequently, due to the non compliance of Ext.P5 judgment in sharing the custody of the OP (FC).No.741 OF 2019 5 child by judgment debtor 1, the respondent filed Ext.P10 execution petition before the Family Court, seeking custody of the child in terms of paragraph No.8 of Ext.P2 agreement.
5. The Family Court finding that the judgment debtors have flouted the terms of the mediation settlement and Exts.P4 and P5 judgments of the Court, passed Ext.P12 order allowing the execution application, ordering judgment debtors 1 to 3, to be detained in civil prison till the production of the child before the court.
6. It is challenging the said order this original petition is filed.
7. The respondent filed a detailed counter affidavit in the above original petition. According to the OP (FC).No.741 OF 2019 6 respondent, on the basis of the mediation settlement, the marriage between the parties was dissolved and it was agreed by all parties that custody of the child would be given to the respondent with visitation rights to the judgment debtor 1. According to the respondent, without prior permission of the court, the judgment debtor 1 fled the country with the child to UAE. The judgment debtor 1 filed O.P.(G&W) No.1263/2018, for getting the permanent custody of the child, under the Guardian and Wards Act, before the Family Court, Mavelikkara, which was dismissed by Ext.R1(a) judgment. The sole intention of the the judgment debtors is to thwart the respondent from having the custody of the child. OP (FC).No.741 OF 2019 7
8. Heard Sri. M.P.Madhavankutty, the learned counsel appearing for the petitioners and Sri.S.Subhash Chand, the learned counsel appearing for the respondent.
9. It is an undisputed fact that the matrimonial disputes between the respondent and the judgment debtors were settled by way of Ext.P2 mediation settlement agreement. It is also an admitted fact that, as per paragraph No.8 of the mediation agreement, the parties have in unequivocal terms arrived at an understanding that the custody of the child would be with the respondent with visitation rights to the father (Judgment debtor 1). On the basis of the mediation agreement, the Family Court, by Exts.P4 and P5 judgments, recorded the OP (FC).No.741 OF 2019 8 mediation agreement and disposed of the cases.
10. The bone of contention of the counsel for the petitioners is that, subsequent to the passing of Exts.P4 and P5 judgments, the respondent had filed I.A.No.881/2018 to record that the custody of the child is entrusted to her, which was dismissed by the Family Court by Ext.P8. In the light of Ext.P8 judgment, the respondent cannot have the custody of the child. Therefore, there is no illegality in judgment debtor 1 taking away the child abroad.
11. The contention of the petitioners is stoutly resisted by the learned counsel for the respondent, who argued that in the light of decision in Kaushaliya v. Jodha Ram and Others [2020 (1) KHC 496 (SC)] the Supreme Court has OP (FC).No.741 OF 2019 9 declared the law that it is always open to the parties to explore the possibility of an overall amicable settlement, including the disputes which are not the subject matter of the proceedings before the Court.
12. It is not disputed that the parties have amicably settled all the disputes between them, including the sharing of custody of the minor child, as per paragraph No.8 of Ext.P2.
13. It is well settled as held in the decision of this Court in Teena M.Ansari v. Rinu Eappen [2019 (4) KHC 593] that, the mediation agreement, having been signed and acted upon, is binding on the parties. After entering into a settlement through the process of mediation and after the court as well as the parties have acted upon the OP (FC).No.741 OF 2019 10 settlement, one of the parties cannot be permitted to unilaterally withdraw from the same.
14. The above view has been taken in light of the decisions of the Supreme Court in Amit Kumar v. Sonila and Others AIR 2018 SC 53, where it is held that there is no necessity for the parties to have a separate agreement in respect of the child.
15. In light of Ext.P2 settlement agreement, the parties have agreed to share the custody of the child and the judgment debtors cannot resile or wriggle out of the terms of agreement. The judgment debtor 1 has without prior permission of the Court, as provided under Section 26 of the Guardian and Wards Act and as held by this OP (FC).No.741 OF 2019 11 Court in Fathimabi.M v. Muhammed Ashraf [2020 (1) KHC 363 (DB) illegally removed the child to UAE. The judgment debtors cannot be permitted to take advantage of their own wrong. They are bound to abide by Ext.P2 agreement. The Honourable Supreme Court in a recent decision in Yashita Sahu v. State of Rajasthan and Others [(2020) SCC online SC 50] has held that both the parents and the child have the right to be in the custody of each other. We do not find any circumstances to interfere with Ext.P12 order passed by the Family Court, in exercise of our supervisory jurisdiction under Article 227 of the Constitution of India. Ultimately, Ext.P12 is passed to enforce Ext.P2, and cannot be found fault with. We do not find OP (FC).No.741 OF 2019 12 any reason to interfere with Ext.P12 order passed by the Family Court. The O.P.(FC) is without any merit and is hence, dismissed.
Sd/- K.HARILAL, JUDGE sd/- C.S.DIAS, JUDGE AMV/30/01/2020 OP (FC).No.741 OF 2019 13 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OP(DMMA) NO.431/2017 DATED 03.10.2017.
EXHIBIT P2 TRUE COPY OF THE MEDIATION SETTLEMENT DATED 26.07.2018 IN OP NO.434/2017 SUBMITTED BEFORE THE Family Court, THIRUVALLA.
EXHIBIT P3 TRUE COPY OF THE COMPLAINT BEFORE THE THRIKKODITHANAM POLICE STATION DATED 15.09.2018.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 04.10.2018 IN OP(MMA) NO.431 OF 2017 BEFORE THE FAMILY COURT, THIRUVALLA.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 04.10.2018 IN OP NO.434 OF 2017 BEFORE THE Family Court, THIRUVALLA.
EXHIBIT P6 TRUE COPY OF THE EP NO.39/2018 IN OP NO.434 OF 2017 BEFORE THE FAMILY COURT, THIRUVALLA.
EXHIBIT P7 TRUE COPY OF THE OP(G & W) NO.1263/2018 BEFORE THE FAMILY COURT, MAVELIKKARA DATED 06.10.2018.
EXHIBIT P8 TRUE COPY OF THE ORDER IN IA NO.881/2018 IN OP NO.434/2017 DATED 04.10.2018 BBEFORE THE FAMILY COURT, THIRUVALLA.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 22.10.2018 IN WP(CRL.) NO.405/2018 BEFORE THIS HON'BLE COURT.
EXHIBIT P10 TRUE COPY OF THE EA NO.25 OF 2019 IN EP NO.39 OF 2018 IN OP NO.434/2018 DATED 16.04.2019 BEFORE THE FAMILY COURT, THIRUVALLA.
EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 24.07.2019 IN OP(FC) NO.471/2019 BEFORE THIS HON'BLE COURT.
OP (FC).No.741 OF 2019 14 EXHIBIT P12 TRUE COPY OF THE ORDER DATED 14.08.2019 IN EA NO.25/2019 IN EP NO.39/2018 PASSED BY THE FAMILY COURT, THIRUVALLA.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A TRUE COPY OF THE JUDGMENT DATED 05/10/2010 IN OP(G&W).NO.1263/2018 PASSED BY THE FAMILY COURT, MAVELIKKARA.
EXHIBIT R1 B TRUE COPY OF THE ORDER DATED 16/03/2019 IN EP.NO.39/2018 PASSED BY THE FAMILY COURT, THIRUVALLA.
TRUE COPY P.A.TO JUDGE