Kerala High Court
Unnikrishnan vs Manikandan on 12 January, 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
FRIDAY,THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937
OP (FC).No. 83 of 2016 (R)
---------------------------
AGAINST THE ORDER IN GOP 614/2015 of FAMILY COURT, IRINJALAKUDA DATED
12-01-2016
PETITIONERS:-:
--------------------
1. UNNIKRISHNAN,
S/O.THEKKOOT JANAKI AMMA, VADAKKE THORAVU DESOM
THORAVU VILLAGE, PUDUKKAD - 680 301.
2. MINOR PARVATHY, AGED 4 YEARS
REPRESENTED BY THE GUARDIAN, THE 1ST PETITIONER.
BY ADV. SRI.T.N.MANOJ
RESPONDENTS:
----------------------
MANIKANDAN
S/O.KORAVANGATTU PADMANABHAN NAIR
AANANDAPURAM PANDARANMOOLA DESOM
AANANDAPURAM VILLAGE, MUKUNDAPURAM TALUK - 680 305.
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No. 83 of 2016 (R)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXHIBIT P1. TRUE COPY OF GOP 614/2015, PENDING ON THE FILES OF THE
FAMILY COURT AT IRINJALAKUDA.
EXHIBIT P2. TRUE COPY OF THE AFFIDAVIT FILE BY 3RD PARTY IN GOP
614/2015, PENDING ON THE FILES OF THE FAMILY COURT ATIRINJALAKUDA.
EXHIBIT P3. TRUE COPY OF THE ORDER DATED 12.01.2016 IN GOP 614/2015, OF
THE FAMILY COURT AT IRINJALAKUDA.
RESPONDENTS' EXHIBITS : NIL
---------------------------------------
//TRUE COPY//
P.A. TO JUDGE
smv
'CR'
C.K.ABDUL REHIM
&
SHAJI P. CHALY, JJ.
..................................................
O.P.(FC) No. 83 of 2016
...................................................
Dated this the 26th day of February, 2016
JUDGMENT
C.K. Abdul Rehim , J.
The petitioners are approaching this court invoking its supervisory jurisdiction vested under Article 227 of the Constitution of India, challenging Ext.P3 order passed by Family Court, Irinjalakuda in G.O.P.No.614/2015, dated 12.01.2016.
2. The petitioners herein are the respondents before the court below. The original petition before the family court was instituted by the respondent herein seeking to appoint him as guardian of the second appellant minor child, and to grant permanent custody of the minor child to him. While considering the original petition, Ext.P3 order was passed by the court below directing the 1st petitioner to produce the O.P.(FC) No. 83 of 2016 2 minor child before the Chief Ministerial Officer of the family court on every 3rd working Saturday at 10 a.m. and to permit the respondent to have one hour interaction with the child. It is challenging the said order, the above original petition is filed.
3. Contention of the petitioners is that, the court below went highly erred in passing Ext.P3 order without there being any interim application filed by the respondent seeking custody of the minor child. It is also contended that the impugned order was passed without affording opportunity to raise objections against granting of interim custody or visitation right to the respondent. Learned counsel for the petitioners contended that, the power vested under Section 12 of the Guardians and Wards Act, 1890 [hereinafter referred to as the `Act' for short], cannot be exercised by the court suo motu, without there being any application filed specifically seeking interim custody of the minor ward. Further contention raised is that, the production of the minor ward can be ordered in exercise of powers vested under O.P.(FC) No. 83 of 2016 3 Section 12 of the Act, only for the purpose of passing an order of temporary custody.
4. While considering contentions enumerated as above, we take note of the reliefs sought for by the respondents in Ext.P1original petition filed before the court below. There are three distinct reliefs sought for in the original petition. One is for declaration of the respondent as guardian of the minor. Another is to grant permanent custody of the minor to the respondent. The third prayer in the original petition is to pass any other order which may be sought for during the course of the original petition or which the court may deem fit and proper to issue.
5. In this regard it is beneficial to have a scanning of Section 12 of the Act. Section 12 is a provision which confers power on the court to make any interlocutory order for production of the minor and to order interim protection with respect to the person and property of the minor. It empowers the court to direct the person having custody of the minor ward to produce the minor ward or to cause him to be O.P.(FC) No. 83 of 2016 4 produced at such place and time and before such person as the court appoints. The said provision further provides that, the court may make such order for temporary custody and protection of the minor as it thinks proper.
6. Learned counsel for the petitioners had drawn our attention to provisions contained in Section 9 of the Act, which enables the court to entertain an application with respect to guardianship of the person or property of a minor. It is contended that there is no justification for the court below to pass any interlocutory order in exercise of Section 12, unless specific request is made through an interlocutory application seeking custody of the child. We are of the considered opinion that such a contention could not be accepted, because of the specific provisions contained in Section 12. While Section 9, 10 and 11 specifies jurisdiction on the court to entertain an application seeking guardianship of the person of a minor and also about the form of the application and further with respect to the procedure on admission of such applications, Section 12 specifically confers O.P.(FC) No. 83 of 2016 5 power to pass any interlocutory orders for production of the minor and also with respect to ordering interim protection of the minor. The ancillary or corollary or incidental power conferred on the court by virtue of specific provision incorporated under Section 12, cannot be restricted or restrained in any manner. This is especially because, it is well settled through various precedents that, the court while dealing with applications for declaring guardianship and custody of minor wards, are exercising the jurisdiction of parens patriae and the prime consideration need to be the welfare of the minor. The court is bound to proceed in any original petition filed under Section 9 in accordance with the procedure contemplated under Section 11. While proceeding with the matter, if the court on its own opinion finds that production of the minor need to be ordered, it can exercise such jurisdiction suo motu and no specific application is required for the said purpose.
7. Learned counsel for the petitioners raised another argument that an order directing production of a minor can O.P.(FC) No. 83 of 2016 6 be issued only if the court arrives at a finding that such production is required for granting temporary custody or protection of the minor to any person, as the court may thinks fit and proper to entrust temporary custody. In other words, the argument is that, the first limb of Section 12(1) of the Act is intrinsically corelated to its second limb, that the power to order production contemplated under the first limb can be exercised only if there is a necessity to hand over custody or protection of the person of the minor to any of the parties. We are of the opinion that the wordings "and may makes such order for temporary custody" contained in Section 12 can only be construed as an independent power conferred on the court, which is separate from the power to order production. Exercise of the discretion vested on the court to order production of the minor need not be dependent upon the power conferred for making any order of temporary custody or protection.
8. In the case at hand, it is evident that, through Ext.P3 order the court had permitted the respondent herein to have O.P.(FC) No. 83 of 2016 7 interaction with the minor child for one hour on every 3rd working Saturdays. It is to be noticed that the respondent herein, who is the petitioner before the court below, is the father of the minor child. Admittedly the mother of the minor child expired. The 1st petitioner is the maternal grand father of the minor child. We do not find any injustice, error or impropriety in the order of the court below providing facility of such interaction.
9. As evident from the order, on the date on which the court below had passed such an order, the petitioners herein were represented through a counsel. It is recorded that the 1st petitioner had appeared subsequently. Therefore, it is evident that the order was passed with notice to the 1st petitioner. Therefore we do not find any justification in the contention that there was denial of opportunity to the petitioners. It has to be presumed that the petitioners were having opportunity to object the order.
10. This court need to be cautioned that, the above original petition is one filed invoking the supervisory O.P.(FC) No. 83 of 2016 8 jurisdiction vested on this court under Article 227 of the Constitution, which is visitorial in nature. Unless the court below had committed any grave error of jurisdiction or had traversed the provisions of any statute or had passed an order which is totally perverse, to the extent it will strike conscience of this court, interference with any of the orders passed, that too in an interlocutory order which are predominantly procedure in nature, is not at all warranted or justified under the visitorial jurisdiction.
Under the above mentioned circumstances, we are of the considered opinion that the original petition deserves no merit, and the same is hereby dismissed.
Sd/-
C.K. ABDUL REHIM JUDGE Sd/-
SHAJI P. CHALY
//true copy// JUDGE
P.A. To Judge
smv
26.2.2016