JUDGMENT

A.Muhammed Mustaque, J.

These matters arise from an order passed by the Family Court giving interim custody of the minor child to the petitioner in OP(FC) No. 49/2022. The petitioner in the above case viz., Anjana Abraham, is the mother of Master Andrew Thomas Martin, born on 10.04.2010. The custody of the child is with the father Martin Thomas, who is the petitioner in OP(FC) No.37/2022. The custody was given to the father based on a compromise entered between parties in O.P.(G&W) No.1008/2017 on the file of the Family Court, Kottayam. As per the compromise, the mother is also entitled to intermittent custody during vacation. The mother is working in U.A.E. Martin Thomas, father of the child resides at Changanacherry. The mother, Anjana Abraham moved the Family Court, Ernakulam for permanent custody of the child in O.P (G&W) No. 2146/2021. She also moved an application for interim custody vide I.A.No.3569/2020. This application was dismissed by the Family Court. Thereupon, Anjana Abraham approached this Court in O.P(FC) No. 256/2021. This Court taking note of the fact that the custody was given to father Martin Thomas based on an order passed in O.P.No.1008/2017 on the file of the Family Court, Ettumanoor, held that without varying that order such interlocutory application cannot be considered by the Family Court.

2. Aggrieved by the order, Martin Thomas approached the Apex Court in SLP No.6959/2021. This matter was taken up along with another SLP filed by the Anjana Abraham arising from Habeas Corpus proceedings. The Apex Court on 09.12.2021 disposed the SLP affirming the order, dismissing the application for interim custody filed by Anjana Abraham. The child was by the time taken abroad by Anjana Abraham. She was also given time up to 31.12.2021 to bring back the child and hand him over to Martin Thomas.

3. On 11.11.2021, the Family Court again passed an order giving interim custody to the mother. This order is challenged by Martin Thomas in O.P(FC) No. 37/2022. Anjana Abraham approached this Court in O.P(FC) No. 49/2022 for implementation of the order passed by the Family Court and allowing Anjana Abraham to take the child abroad.

4. After hearing both the counsels, we are dismayed by the order passed by the Family Court. The application for interim custody has been dismissed by this Court as well as the Apex Court. The Apex Court specifically directed the Family Court to adjudicate the dispute on guardianship and custody including interim custody before 31.03.2022. It is appropriate to refer to the relevant portion of the Apex Court order.

“We direct the Family Court to hear and dispose of the pending applications being O.P.(F.C) No. 256 of 2021, GOP No.729/2020 and G.O.P No. 2146 of 2020 pertaining to guardianship, interim custody and modification of the order recording the compromise in accordance with law within three months from the date of communication of this Court.”

5. The reference to the interim custody obviously refers to such custody to be considered along with the final order to be passed in the matter. The dismissal of interlocutory applications seeking interim custody has been affirmed by the Apex Court. When the orders in an interlocutory application have been affirmed, it is not open for the Family Court to reopen and pass orders in dereliction to the orders of this Court and the Apex Court. When we indicated this, the learned counsel appearing for Anjana Abraham submits that they are not pressing the application for interim custody. It is submitted that the case was posted today and on account of the pendency of the original petition, it was not taken up.

6. Learned counsel for Martin Thomas would submit that the petition before the Family Court is not maintainable and without addressing the maintainability of such petition, the Family Court should not proceed further. It is further submitted that he has filed an application seeking a direction to Anjana Abraham, to hand over the transfer certificate o