The court emphasized that custody decisions must prioritize the welfare of children while adhering to existing legal judgments and compliance.

JUDGMENT

P.G. Ajithkumar, J.

The petitioner is the respondent in O.P.(G&W) No.38 of 2020 before the Family Court, Pathanamthitta. The petitioner challenges Ext.P10, which is an order of the Family Court in I.A.No.21 of 2022 in that Original Petition, as per which the custody of the children was handed over to the respondent.

2. When this matter came up for consideration on 21.12.2022, notice was directed to be served on the respondent, through Special Messenger. The respondent entered appearance through his learned counsel.

3. Heard the learned counsel appearing for the petitioner and the Senior Counsel appeared on instructions for the respondent.

4. O.P.(G&W) No.38 of 2020 was filed by the respondent seeking to declare him the guardian of his children Thanmaya Ayyanchira Manoj and Vismaya Ayyanchira Manoj, and for custody. As per the judgment dated 19.07.2022, Ext.P4, the O.P. was decreed and the petitioner herein was directed to hand over custody of the children to the respondent. It is seen that the said direction was not duly complied with, which resulted in the respondent's filing interlocutory application for getting custody of the children. The Family Court directed the parties along with the children to be present before this Court. On 31.10.2022, the parties as well as the children had appeared before the Family Court, Pathanamthitta and custody of the children was handed over to the respondent. The petitioner challenges correctness and legality of the said order, Ext.P10 in this Original Petition filed under Article 227 of the Constitution of India .

5. The learned counsel appearing for the petitioner would submit that the mother is denied custody of the children on the basis of an exparte judgment passed in O.P.G&W) No.38 of 2020 and therefore Ext.P10 order as per which the custody of the children was handed over to the respondent is liable to be set aside.

6. The learned Senior counsel appearing for the respondent would point out that the review petition filed by the petitioner for getting Ext.P4 judgment reviewed is pending consideration of the Family Court, Pathanamthitta. It is further submitted that the petitioner never was prompt in appearing before the Family Court in O.P.(G&W) No.38 of 2020 and Ext.P4 judgment was rendered after taking into account all the aspects of the matter. Only because the petitioner failed to obey the direction in Ext.P4, the Family Court was constrained to initiate steps for implementing the said direction and that resulted in Ext.P10 order.

7. The directions in Ext.P4 judgment is in force. As long as it is varied or set aside, the petitioner is obliged to comply with that direction. Ext.P10 order was issued in order to enforce the direction in Ext.P4 judgment. We cannot find any patent illegality in Ext.P10 order.

8. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

9. InShalini Shyam Shetty v. Rajendra Shankar Patil [ (2010) 8 SCC 329 ] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functi