Kerala High Court
Ammu Ajit vs Nil on 19 September, 2014
Author: Anil K.Narendran
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 6TH DAYOF APRIL 2016/17TH CHAITHRA, 1938
OP (FC).No. 53 of 2016 (R)
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E.P.No.73/2015 IN OP(FC)No.434/14 & E.A.22/16 IN E.P.No.73/15 OF FAMILY COURT
ERNAKULAM.
PETITIONER:
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AMMU AJIT, AGED 35 YEARS,
D/O. AJIT, RESIDING AT VRINDAVAN,
DIWANS ROAD, KOCHI 682 016
NOW RESIDING ATAPARTMENT NO. 7132,4TH FLOOR,
PRESTAGE NEPTUNE APARTMENTS,
MARINE DRIVE, ERNAKULAM 682 031
BY ADVS. SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SMT.GISA SUSAN THOMAS
SRI.P.U.VINOD KUMAR
SRI.KANDAMPULLY RAHUL
SRI.MITHUN BABY JOHN
SRI.J.RAMKUMAR
RESPONDENT
-------------------
PREM CHANDER S.
S/O. SUNDARAMOORTHY @ SUNDARAM PILLAI,
RESIDING AT 9/610,SAKTHI,
KUNISSERY,PALAKKAD 678 681
BY ADV. SRI.RAJESH SIVARAMANKUTTY
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 15.3.2016, THE
COURT ON 6.4.2016 DELIVERED THE FOLLOWING:
OP (FC).No. 53 of 2016 (R)
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APPENDIX
PETITIONER'S' EXHIBITS
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EXHIBIT P1: A TRUE COPY OF THE JUDGMENT DATED 19/9/2014 IN OP(FC) NO.
434/2014 OF THIS HON'BLE COURT ALONG WITH THE COPY OF THE
COMPROMISE PETITION
EXHIBIT P2: A TRUE COPY OF THE ORDER DATED 21/7/2015 IN I.ANO 7417/2015 IN
I.ANO 12682/2014 IN O.P (FC) NO 434/2014 OF THIS COURT
EXHIBIT P3: A TRUE COPY OF THE PETITION IN O.P NO 1631/20915 ON THE FILE OF
THE FAMILY COURT, ERNAKULAM
EXHIBIT P4: A TRUE COPY OF THE INTERIM CUSTODY APPLICATION-IA NO 3452/2015
IN O.P NO 1631/2015 ON THE FILE OF THE FAMILYCOURT,ERNAKULAM
EXHIBIT P5: A TRUE COPY OF THE JUDGMENT DATED 3/9/2015 IN O.P(FC) NO
411/2015 OF THE FAMILY COURT,ERNAKULAM
EXHIBIT P6: A TRUE COPY OF THE ORDER DATED 11/9/2015 IN I.A NO 3432/2015 IN
O.P NO 1631/2015 OF THE FAMILY COURT, ERNAKULAM
EXHIBIT P7 A TRUE COPY OF THE E.P NO 73/2015 ON THE FILE OF THE FAMILY
COURT, ERNAKULAM
EXHIBIT P8: A TRUE COPY OF THE ORDER DATED 11/1/2016 IN OP(F.C) NO 4/2016 OF
THIS COURT
EXHIBIT P9: A TRUE COPY OF THE ORDER DATED 29/1/2016 IN E.P NO 73/2015 IN O.P
(FC) NO 434/2014 OF THE FAMILY COURT, ERNAKULAM
EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 1/2/2016 IN E.A NO 22/2016 IN E.P
NO 73/2015 OF THE FAMILYCOURT
EXHBIIT P11:A TRUE COPY OF THE PRINTOUT OF PROFILE DETAILS OF THE
RESPONDENT PUBLISHED IN KERALAMATRIMONY .COM
RESPONDENT'S EXHIBITS: NIL
TRUE COPY
P.S.TO JUDGE
dsn
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
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O.P.(FC)No.53 OF 2016
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DATED THIS THE 6th DAY OF APRIL, 2016
JUDGMENT
ANIL K.NARENDRAN, J.
The petitioner has filed this Original Petition under Article 227 of the Constitution of India seeking an order to set aside Ext.P9 order dated 29.1.2016 of the Family Court, Ernakulam, in E.P.No.73/2015 in O.P.(FC)No.434/2014 and Ext.P10 order of the said Court dated 1.2.2016 in E.A.No.22/2016 in E.P.No.73/2015.
2. The respondent herein filed O.P.(FC) No.434 of 2014 before this Court, seeking an order directing the petitioner herein to give interim custody of his minor son Aaryan during his temporary stay in Kerala. During the pendency of that Original Petition, the parties have entered into a compromise and the terms of settlement was filed before this Court in the form of a joint petition as I.A.No.12682 of 2014. The parties have agreed to sever their relationship as husband and wife and it was agreed further that their minor son Aaryan shall continue under the care and custody of the petitioner/mother and the respondent/father shall have interim OP(FC)No.53/16 -2- custody of the child during his temporary stay in Kerala.
3. As stipulated in the joint petition, the marriage between the parties registered on 18.8.2004 under the Special Marriage Act, 1954 and the customary marriage conducted on 22.8.2014 at Ernakulam was dissolved by Ext.P1 judgment of this Court dated 19.9.2014 in O.P.(FC) No.434 of 2014, as provided under Section 28 of the Special Marriage Act. I.A.No.12683 of 2014 filed under Section 28(2) of the Special Marriage Act seeking order to waive the six months' period was also allowed. By Ext.P1 judgment, it was also ordered that O.P.Nos.2168 of 2013, 754 of 2013 and 1375 of 2014 pending before the Family Court, Ernakulam are struck off from the file, in view of the compromise and that, all further proceedings in C.C.No.333 of 2013 pending before the Chief Judicial Magistrate's Court, Ernakulam is quashed.
4. Seeking modification of the clause in the compromise petition regarding interim custody of the minor child, the petitioner/mother moved I.A.No.7417 of 2015 in I.A.No.12682 of 2014 in O.P.(FC) No.434 of 2014, which request was turned down by this Court vide Ext.P2 order dated 21.7.2015. OP(FC)No.53/16 -3- Thereafter, the respondent/father filed O.P.No.1631 of 2015 before the Family Court, Ernakulam, seeking an order to give him permanent custody of the minor child and for other consequential reliefs. Along with the said Original Petition, the respondent/father filed I.A.No.3452 of 2015 seeking interim custody of the child. Thereafter, he moved this Court in O.P.(FC) No.411 of 2015, which was disposed of by Ext.P5 judgment dated 3.9.2015, directing the Family Court to take an appropriate decision on Ext.P4 interim application, after affording an opportunity of being heard to the petitioner/mother on 8.9.2015 itself, taking note of the observations contained in Ext.P5 judgment.
5. On 11.9.2015, after interacting with the minor child, the learned Family Court Judge found that the custody of the child cannot be given to the respondent/father as the child is not willing to go with him. However the petitioner/mother expressed her willingness to provide access to the respondent/father during day time. Hence the Family Court by Ext.P6 order directed the petitioner/mother to give access to the child to the respondent/ father on 12th, 13th, 19th, 20th and 21st of September, 2015 from OP(FC)No.53/16 -4- 9.30AM till 4.30 PM in the court premises.
6. While so, the respondent/father filed E.P.No.73 of 2015 before the Family Court for enforcing Ext.P1 judgment and decree of this Court in O.P.(FC) No.434 of 2015 through Police aid or any other aid that the Family Court deemed fit to enforce and cause the minor child to be handed over to his custody, in terms of the above said judgment and decree. After filing E.P.No.73 of 2015, the respondent/father approached this Court in O.P.(FC) No.4 of 2016, which was disposed of by Ext.P8 judgment dated 11.1.2016. This Court, without expressing anything on the merits of the case, disposed of that Original Petition directing the Family Court to consider E.P.No.73/2015 with notice to the petitioner/mother and pass appropriate orders thereon, within a period of two weeks from the date of production of a certified copy of the judgment. Both parties were directed to appear before the Family Court on 16.1.2016.
7. On 16.1.2016, there was no sitting in the Family Court and the case was adjourned to 21.1.2016 by notification. On 21.1.2016, the Family Court directed the petitioner/mother to produce the child in Chambers on 28.1.2016. The petitioner/ OP(FC)No.53/16 -5- mother would contend that, though she appeared before the Family court along with the minor child on 28.1.2016, there was no counselling or interaction with the child or the parties and the case was adjourned to 29.1.2016. The petitioner/mother would contend that, though she and the minor child were present in Court on 29.1.2016, the Family Court passed Ext.P9 order, ordering as follows:
"Advanced as per order in E.A.No.10/2016. Heard. E.P.No.73/15 is allowed as prayed for. Take steps to enforce the decree and judgment dt.19.9.2014 in O.P. (FC) No.434/2014. For comply and report, issue bring up warrant. 6.2.2016."
8. On 30.1.2016, when the police official in mufti attempted to take away the minor child, forcefully from the Sunrise Hospital, Kakkanad, where the child was admitted due to acute wheezing and related treatments, the petitioner/mother filed E.A.No.22 of 2016 in E.P.No.73/2015 to recall the order dated 29.1.2016 in E.P.No.73/2015 and E.A.No.23 of 2016 to review the said order. However, the Family Court dismissed E.A.No.22 of 2016 as per Ext.P10 order dated 1.2.2016. Though the Family Court has recorded the submission of the OP(FC)No.53/16 -6- petitioner/mother that she will produce the child on 6.2.2016, the Court did not find any circumstance to recall Ext.P9 order.
9. It is aggrieved by Exts.P9 and P10 orders, the petitioner/mother is before this Court in this Original Petition.
10. By order dated 5.2.2016 this Court stayed Ext.P9 warrant issued against the petitioner/mother for a period of two months, since she had already undertaken to produce the minor child before the Family Court on 6.2.2016. Both parties were directed to appear before the Family Court on 6.2.2016 along with the minor child and the Family court was directed to interact with the child and take an appropriate decision in the matter keeping in mind the law laid down by the Apex Court in Rosy Jacob v. Jacob Chakramakkal (AIR 1973 SC 2090) after considering all relevant materials, including Ext.P1 judgment, Ext.P2 order, Ext.P5 judgment of this Court and also Ext.P6 order of the Family Court. The said order reads thus:
" Heard both the sides.
2. Since the petitioner had already undertaken to produce the minor child 'Aaryan' before the Family Court on 6.2.2016, the warrant issued against the petitioner herein in Ext.P9 order dated 29.1.2016 in OP(FC)No.53/16 -7- E.P.No.73 of 2015 in O.P.(FC) No.434 of 2014 will stand stayed for a period of two months.
3. Both parties shall appear before the Family Court on 6.2.2016 along with the minor child 'Aaryan'.
4. In Rosy Jacob Vs. Jacob A.Chakramakkal (AIR 1973 SC 2090) the Apex Court held that, all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation. The three-Judge Bench of the Apex Court, in a rather curt language observed that, 'the children are not mere chattels; nor are they mere play-things for their parents'.
5. On 6.2.2016 the Family Court shall interact with the child and take an appropriate decision in the matter, keeping in mind the law laid down by the Apex Court in the aforesaid judgment and after considering all relevant materials, including Ext.P1 judgment dated 19.9.2014 in O.P.(FC)No.434 of 2014, Ext.P2 order dated 21.7.2015 in I.A.No.7417 of 2015 in I.A.No.12682 of 2014 in O.P.(FC)No.434 of 2014, Ext.P5 judgment dated 3.9.2015 in O.P.(FC)No.411 of OP(FC)No.53/16 -8- 2015, of this Court and also Ext.P6 order dated
11.9.2015 in I.A.No.3432 of 2015 in O.P.No.1631 of 2015 of the Family Court, Ernakulam."
11. We heard the arguments of the learned counsel for the petitioner and also the learned counsel appearing for the respondent.
12. Since Ext.P3 Original Petition filed by the respondent seeking an order to give permanent custody of the minor child and other consequential reliefs is pending consideration before the Family Court, we are not going into the merits of the rival contentions raised by both sides.
13. As we have already noticed in our order dated 5.2.2016, the Apex Court in Rosy Jacob's case (supra) has categorically held that all orders relating to the custody of minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders, if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent, OP(FC)No.53/16 -9- are liable to be varied by the Court, if the welfare of the wards demands variation. In the aforesaid judgment, the three Judge Bench of the Apex Court in a rather curt language observed that "the children are not mere chattels; nor are they mere play- things for their parents."
14. It is well settled that in a case for custody of a minor child, the paramount consideration shall be the welfare of the child. The Apex Court has in Nil Ratan Kundu Vs. Abhijit Kundu [2008(9) SCC 413] dealing with the principles governing the custody of children, held that a court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting a proper guardian for a minor, the paramount consideration should be the welfare and well-being of the child. The Apex Court held further that, a child is not "property" or "commodity" and that the issues relating to custody of minors and tender aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. Paragraphs 52 and 58 of the judgment read thus:-
"52. In our judgment, the law relating to custody of a OP(FC)No.53/16 -10- child is fairly well-settled and it is this: in deciding a difficult and complex question as to the custody of a minor, Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting the legal provisions. It is a human problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations.
If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor."
xxx xxx xxx "58. Though this Court in Rosy Jacob Vs. Jacob A. Chakramakkal [1973 (1) SCC 840] held that OP(FC)No.53/16 -11- children are not mere chattels nor toys, the trial Court directed handing over custody of Antariksh 'immediately' by removing him from the custody of his maternal grandparents. Similarly, the High Court, which had stayed the order of the trial Court during the pendency of appeal, ordered handing over of Antariksh to his father within twenty-four hours positively. We may only state that a child is not "property" or "commodity". To repeat, issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem."
15. Later, in Gaytri Bajaj v. Jiten Bhalla [2012 (2) SCC 471] the Apex Court reiterated that, it is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. Paragraphs 12, 13 and 14 of the judgment read thus :-
"12. The law relating to custody of minors has received OP(FC)No.53/16 -12- an exhaustive consideration of this Court in a series of pronouncements. In Gaurav Nagpal v. Sumedha Nagpal (2009(1) SCC 42) the principles of English and American law in this regard were considered by this Court to hold that the legal position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswati Bai Shripad Ved v. Shripad Vasanji Ved (AIR 1941 Bombay 103) ; Rosy Jacob v. Jacob A Chakramakkal (1973 (1) SCC 840) and Thirty Hoshie Dolikuka v. Hoshiam Shavdaksha Dolikuka (1982 (2) SCC 544) this Court eventually concluded in paragraphs 50 and 51 that :
"50. That when the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousmi Moitra Ganguli's case (AIR 2008 SC 2262 : 2008 AIR SCW 4043) the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical OP(FC)No.53/16 -13- comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
51. The word "welfare" used in section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which governs the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases."
13. The views expressed in Paras 19 and 20 of the report in Mousmi Moitra Ganguli v. Jayant Ganguli (2008 (7) SCC 673) would require special notice. In the said case it has been held that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody. It was the further view of this Court that the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. Similar observations of this Court contained in para 30 of the Report in Sheila B. Das v. P.R. Sugasree (2006 (3) SCC OP(FC)No.53/16 -14-
62) would also require a special mention.
14. From the above it follows that an order of custody of minor children either under the provisions of The Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court."
16. As we have already noticed E.P.No.73/2015 filed by the respondent/father is for enforcement of Ext.P1 judgment and decree of this Court dated 19.9.2014 in OP(FC) No.434 of 2014 to the extent it relates to interim custody of the minor child Aaryan, in terms of Para.4 of the joint petition filed as I.A.No.12682/2014 in that Original Petition, which forms part of OP(FC)No.53/16 -15- that decree. In terms of the aforesaid clause, the respondent/father while in India is entitled to have interim custody of the minor child Aaryan from the petitioner/mother during 15 days of summer vacation, 5 days each during Onam and Christmas holidays of the minor child, in the presence of his parents. The respondent/father is also entitled to get temporary custody of the minor child on Saturdays when he is in Kerala other than during normal vacations of the child, at the presence of his parents, at the residence of the petitioner/mother and he has to return the child on the succeeding Sunday. It was in the aforesaid execution petition, the Family Court passed Ext.P9 order, allowing the execution petition as prayed for and for taking steps to enforce the decree, the matter was posted to 6.2.2016 for compliance and report and the Court has also ordered bring up warrant. For recalling the bring up warrant issued in Ext.P9 order, the petitioner/mother filed E.A.No.22/2016, which stands rejected by Ext.P10 order dated 1.2.2016, in spite of the specific undertaking made by the petitioner/mother that she will produce the minor child on 6.2.2016.
17. The specific stand taken by the petitioner/mother in OP(FC)No.53/16 -16- Para.11 of the Original Petition is that, she and the minor child were present in the Family Court on 29.1.2016 when the case was called. Though her counsel requested the Court to have a Chamber counselling of the child, in view of Ext.P6 order passed by the Family Court, the learned Judge issued Ext.P9 order, inter alia, issuing bring up warrant by recording that the execution petition is allowed. When the child is ordered to be produced by issuing a bring up warrant, the Family Court should have posted the execution petition to 6.2.2016 for further orders. As a matter of fact, the execution petition was again listed on 6.2.2016. In view of Ext.P9 order, the petitioner/mother filed E.A.No.22/2016 in order to recall the bring up warrant issued in E.P.No.73/2015. Though the said application was listed before the Court on 1.2.2016, in spite of the undertaking given by the petitioner/ mother that she will produce the child on 6.2.2016, the Family Court declined to recall the production warrant vide Ext.P10 order. When the petitioner/mother had agreed to produce the minor child on 6.2.2016 itself, the Family Court should have recalled the bring up warrant issued in Ext.P9 order. In that view of the matter, we set aside Exts.P9 and P10 orders passed by the OP(FC)No.53/16 -17- Family Court and direct the Family Court to reconsider the matter and pass appropriate orders, after hearing both sides.
18. The learned counsel for the respondent/father would then contend that the present Original Petition is not maintainable, since the remedy open to the petitioner/mother against Ext.P9 order is to file an appeal in terms of Section 19 of the Family Courts Act, 1984. Going by Section 19, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court, to this Court both on facts and on law. Therefore, if the order under challenge is only in the nature of an interlocutory order, the remedy available to the aggrieved party is to move this Court in an Original Petition under Article 227 of the Constitution of India. As we have already noticed, Ext.P9 order by its very nature is an interlocutory order, which cannot be challenged in an appeal filed under Section 19 of the Act. Similarly, Ext.P10 order passed by the Family Court is also an interlocutory order. In that view of the matter, the present Original Petition filed by the petitioner/mother challenging Exts.P9 and P10 orders are perfectly maintainable and we hold so.
OP(FC)No.53/16 -18-
19. As we have already noticed, Ext.P3 Original Petition filed by the respondent/father seeking an order to give permanent custody of the minor child and for other consequential reliefs is pending consideration before the Family Court. Since we have set aside Exs.P9 and P10 orders, it is for the Family Court to pass appropriate orders after hearing both sides and after considering the rival contentions.
20. Since the matter is remanded to the Family Court for fresh consideration, we are not expressing anything on the rivals contentions made by both sides, relying on various judgments of the Apex Court as well as that of the High Courts. For the very same reason, we have not taken note of the additional documents produced by the petitioner/mother along with I.A.No.309/2016 in this Original Petition and the said I.A. is closed without prejudice to the right of the petitioner/mother to produce the same before the Family Court. All such contentions are left open and it is for both parties to raise all such contentions and place reliance of all such materials before the Family Court. It would be open to the respondent/father to move an interlocutory application before the Family Court regarding OP(FC)No.53/16 -19- custody of the minor child during summer vacation. If any such application is made, the Family Court shall consider the same and pass appropriate orders thereon, as expeditiously as possible, with notice to both sides.
The Original Petition is disposed of as above. Both parties shall appear before the Family Court, Ernakulam on 12.4.2016.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN, JUDGE dsn True copy P.S.to Judge