Kerala High Court
Dawlu @Dawlath vs Ahammed Tarish on 10 April, 2013
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
&
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 24TH DAY OF JULY 2014/2nd SRAVANA, 1936
OP (FC).No. 349 of 2014 (R)
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IN L.A 1063/2014 IN O.P. 500/2013 ON THE FILES OF THE FAMILYCOURT,KOLLAM
PETITIONER(S)/COUNTER PETITIONER:
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DAWLU @DAWLATH, AGED 32 YEARS,
D/O.SHEREEF REHMAN, MUSLIM, HOUSE WIFE,
RESIDING AT DOWLATH, NALANDA NAGAR, 109,
KC 51, DOOR NO.2093 OF KOLLAM CORPORATION,
KOLLAM WEST VILLAGE.
BY ADVS.SRI.BECHU KURIAN THOMAS
SRI.PAUL JACOB (P)
SRI.ENOCH DAVID SIMON JOEL
SRI.S.SREEDEV
SRI.RONY JOSE
RESPONDENT(S)/PETITIONER:
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AHAMMED TARISH,
S/O.ABDUL SALAM, MUSLIM, BUSINESS,
RESIDING AT A.K.M.BUILDINGS, ALAMOODU,
ALAMCODU DESOM AND VILLAGE.
BY ADV. SRI.M.K.CHANDRA MOHANDAS
THIS OP (FAMILYCOURT) HAVING BEEN FINALLY HEARD ON 24-07-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No. 349 of 2014 (R)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1- TRUE COPY OF THE APPLICATION DATED 10.04.2013 IN O.P.(G&W)
NO.508/2013.
P2- TRUE COPY OF THE ORDER DATED 10.9.2013 IN I.A.NO.3025/2013.
P3- TRUE COPY OF THE APPLICATION DATED 19.4.2014.
P4- TRUE COPY OF THE OBJECTION TO THE APPLICATION DATED 28.04.2014.
P5- TRUE COPY OF THE PETITION HANDED OVER TO THE COUNSEL FOR THE
PETITIONER ON 23.05.2014 NUMBERED AS I.A.NO.1063/14 IN OP(G&W)
NO.508/2013.
P6- TRUE COPY OF THE OBJECTION TO EXT.P5 FILED BY THE PETITIONER ON
31.05.2014.
P7- TRUE COPY OF THE ORDER DATED 23.05.2014 IN I.A.NO.1063/14 IN OP(G&W)
NO.508/2013.
P8- TRUE COPY OF THE ORDER DATED 23.05.2014 IN OP(G&W) NO.508/2013 ON
THE FILES OF THE FAMILY COURT, KOLLAM.
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.A TO JUDGE
LSN
HARUN-UL-RASHID & ALEXANDER THOMAS, JJ.
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O.P(FC) No.349 Of 2014
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Dated this the 24th day of July, 2014.
J U D G M E N T
Harun-Ul-Rashid, J.
Parties are present. We have interacted with the parties at length. In our efforts to settle the disputes between the parties, we referred the matter to mediation today. The mediator reported that he mediated the issue for about 2 = hours. The Mediator submitted the report reporting that the matter is not settled.
2. The petitioner is the respondent in O.P(G&W). No.508/2013 on the file of the Family Court, Kollam. The O.P was filed by the respondent husband seeking guardianship of the minor children. The marriage between the parties was solemnized on 24.11.2005. The parties herein are the parents of two minor sons aged 7 and 2 = years respectively. The parties have been living separately for the last two years due to estrangement and broken marital relationship.
3. During the pendency of the O.P, respondent father filed application seeking interim custody during Onam and X- mas holidays. During 2013, temporary custody of the elder ::2::
O.P(FC) No.349 Of 2014 minor son was given to him for a period of one week during Onam and X-mas holidays. On each occasion, after the end of the period of interim custody, the child was handed over back to the mother. During, April, 2014, the respondent husband again filed application seeking interim custody of the elder child during summer holidays for a period of 30 days. Exts.P3 & P4 are the copies of application and objection respectively. Ext.P3 application was allowed and interim custody was granted to the petitioner for the period from 16.5.2014 till 23.5.2014. On 23.5.2014, the respondent-father sought extension of interim custody by another week on the premise that the school will be re-opening only during June, 2014. The petitioner wife did not object the continuation of the interim custody by another week.
4. The learned counsel for the petitioner explained to this Court, the proceedings and happenings on 23.5.2014. The court was inclined to grant interim custody for a further period of one week as requested by the respondent-father. The counsel pointed out that on the same day, the counsel for the respondent-father, who appeared before the Family Court, handed over a paper to the petitioner's counsel in court stating ::3::
O.P(FC) No.349 Of 2014 that the father filed an application seeking permission to allow the elder child to be admitted to Trivandrum International School, Attingal. The mother is a resident of Kollam and father belongs to Attingal in Thiruvananthapuram District. It is submitted that since the petitioner's counsel received copy of the application in the open court, he was under the bonafide belief that the same would be posted for objections. Copy of the application dated 23.5.2014 numbered as I.A.No.1063/2014 is marked as Ext.P5 for reference in this case. Copy of the objection to Ext.P5 is marked as Ext.P6. Based on the advance petition, the case was advanced to
5.6.2014, then adjourned to 7.6.2014 and to 21.6.2014. The proceedings alleged to have transpired on 21.6.2014 is extracted in paragraph 9 of the O.P. "9. On 21.6.2014 petitioner appeared in person and the case was called in the morning and kept aside to be called again later. At 1:30 pm, it was informed that all remaining cases would be called after lunch. While petitioner's counsel was on his way for lunch, the opposite counsel told him that the case would be called in the Chambers of the Judge. Petitioner's counsel informed that there is no such official communication and that petitioner herself had gone ::4::
O.P(FC) No.349 Of 2014 for lunch and it may not be possible for the case to be called in the Chamber at that moment. Thereafter, petitioner's mother received a telephone call, stating to be from the court asking the petitioner to be present in the court immediately. In compliance with the said direction, petitioner went to the court and she was asked to go to the chambers of the learned Judge. When she went inside the Chamber, she found the respondent sitting inside the Chamber of the learned District Judge along with the Counsellor. Petitioner's counsel also went inside the Chamber and requested the learned Judge to take the case in open Court after lunch. Petitioner specifically said that she had never agreed or permitted the husband to have custody of the child except for the period during the summer holidays. Petitioner also insisted that the child be handed over to her, so that she can pursue his studies."
The court below on the same day passed Ext.P7 order in the following lines.
"Heard both sides. Respondent has no objection. Permission is granted".
The order was passed in I.A.No.1063/2014 seeking permission to allow the elder child to be admitted to Trivandrum International School, Attingal. On the same day, the court below passed another order, marked as Ext.P8, on the same ::5::
O.P(FC) No.349 Of 2014 line. It is not known for what purpose two similar orders are passed permitting the respondent to admit the elder child to Trivandrum International School, Attingal. It is stated in Ext.P8 order that the petitioner herein, who is the mother, has no objection in granting permission, provided the expenses will be met by the husband. The court granted permission as prayed for in I.A.No.1063/2014. The counsel for the petitioner submits that there was no occasion for the petitioner or the counsel to peruse the contents of the petition or even understand the nature of the petition and that the petitioner was not made aware of the contents of I.A.No.1063/2014. It is submitted that therefore, there was no occasion for the petitioner to agree to submit that she has no objection in granting permission.
5. The petitioner herein filed a detailed objection against the prayer to grant even interim custody. But, when the matter was taken up for consideration she agreed for a week's custody to be given to the father. During summer holidays in fact she has no objection in extending the interim custody for a further period of one week. It is pointed out that there was no endorsement on 23.5.2014 in the 'B Diary' ::6::
O.P(FC) No.349 Of 2014 regarding I.A.No.1063/2014 or regarding any orders passed on that day.
6. We have interacted with the parties at length. We have also ascertained the facts from the parties. The petitioner submits that her elder minor son is studying at Infant Jesus Anglo-Indian School, Thangassery, Kollam and there was no occasion for granting permission to her husband to admit the child in another school. She revealed the fact that she only expressed her no objection in granting temporary custody of the child for a further period of one week from 23.5.2014. She had expressed no objection in extending the interim custody for the reason that the school will re-open only in June, 2014 and therefore she consented for extension of temporary custody.
7. During 2013, the husband of the petitioner applied for temporary custody extending the period of one week during Onam and X-mas holidays and that time the elder child was undergoing study in the Infant Jesus Anglo-Indian School, Thangassery, Kollam. Father never intended the child to be admitted to another school during 2013 and till April, 2014.
The respondent applied for interim custody of the elder child ::7::
O.P(FC) No.349 Of 2014 during summer holidays for a period of 30 days. Ext.P3 application is filed for the said purpose and that time also he had not expressed any intention to take the child to another school of his choice. In fact, the court below granted only interim custody for one week. Subsequently it extended for another one week. When the child was brought to the court on 23.5.2014, the respondent-father sought extension of interim custody by another one week on the premise that there was sufficient time for school re-opening. We failed to understand for what reason all on sudden on 23.5.2014, I.A.No.1063/2014 was filed seeking permission of the court to get the ward admitted in Trivandrum International School, Attingal. In the affidavit filed in support of the petition marked as Ext.P4, he applied for admitting the child to Trivandrum International School, that the ward underwent written test and interview and he passed successfully in the test and interview. It is stated that the school authorities selected the ward to admit the child in the school for which they have issued application form and that the application form is issued only after passing the eligibility test. We find it difficult to understand the intention of the respondent-father in applying for admission in ::8::
O.P(FC) No.349 Of 2014 another school of his choice without the knowledge and consent of the Family Court. It is not known whether the ward underwent written test and interview. If it is so, that was done without seeking permission of the Family Court and without obtaining any orders. Taking into consideration the facts, we are of the view that the petition filed on 23.5.2014 during lunch hours is an afterthought and lacks bonafides. He has not expressed any intention to take the child to another school at any point of time during 2013 till 23.5.2014. In fact, the court below was called upon to consider his prayer for interim custody during summer recess. From the detailed objection filed by the petitioner-mother, marked as Ext.P6, it is seen that the petitioner-mother seriously objected the prayer in Ext.P5 and prayed to the court to dismiss the application with costs. We do not know under what circumstances the court passed two interim orders on the same day in similar lines granting permission to the respondent-father to admit the ward in Trivandrum International School, Attingal. In the facts and circumstances, we are convinced that Ext.P7 & P8 orders are wrong and illegal. The Family Court without following the proper procedures, straightaway passed order on the same day ::9::
O.P(FC) No.349 Of 2014 recording that the petitioner has no objection in granting permission. From the facts and circumstances, it is very clear that the petitioner never intended nor reported no objection in the matter. The petitioner has got very serious grievances in the matter and has narrated the proceedings on 23.5.2014 in detail in the original petition.
8. The counsel for the petitioner also submits that the ward was taken to the School at Attingal even without obtaining the Transfer Certificate and other records maintained at the school at Thangassery. All these facts would show that the respondent-father has resorted to some foul play for taking the child from the mother. We are thoroughly dissatisfied with the way in which the impugned orders, Exts.P7 & P8, are passed. We are also surprised to see that without obtaining any orders from the family court for interim custody, the respondent-father was keeping the child with him from 30.5.2014 till today.
In the result, O.P(FC) is allowed. Exts.P7 & P8 orders are set aside. The ward shall be put back in the Infant Jesus Anglo-Indian School, Thangassery, Kollam. We permit the petitioner mother to take the elder minor child with her. The ::10::
O.P(FC) No.349 Of 2014 respondent father is free to move the Family Court for short terminterim custody of the child pending disposal of the original petition. In that event, the Family Court shall consider the application on merits and pass appropriate orders thereon.
HARUN-UL-RASHID, Judge.
ALEXANDER THOMAS, Judge.
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