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2023 Supreme(Online)(KER) 5904
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
DHANYA – Appellant
Versus
BABEESH – Respondent
OP (FC) 718/2022
MAHESH V.MENON, SANTHOSH P.PODUVAL, R.RAJITHA(K/870/2005), CHITHRA S.BABU(K/376/2012)
The welfare of the child is the primary consideration in custody disputes, and compliance with court orders is essential for safeguarding children's interests.
Headnote:
Supervisory Jurisdiction - Family Court - Article 227 - The court analyzed the Family Court's order for interim custody, emphasizing the importance of the child's welfare, and ruled on the procedural validity concerning custody applications.
Fact of the Case:
The petitioners sought to set aside a Family Court order granting interim custody of a minor child to the respondent, as the respondent did not produce the child during proceedings, raising concerns about living conditions.
Finding of the Court:
The court issued a stay on the Family Court's order while allowing the petitioners to withdraw their writ petition, noting the procedural developments concerning custody arrangements and children's welfare.
Issues: Whether the Family Court's interim custody order was valid given the circumstances of non-compliance by the respondent.
Ratio Decidendi: The court held that the welfare of the child is paramount in custody disputes and affirmed the importance of adhering to court orders in such matters.
Final Decision: The original petition is dismissed as withdrawn, with the interim custody order vacated.
JUDGMENT
Anil K. Narendran, J.
The petitioners, who are the respondents in GOP No.1157 of
2022 on the file of the Family Court, Thrissur, have filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , seeking an order to set aside Ext.P3 order dated 30.08.2022 in I.A.No.2 of 2022 in that original petition. Paragraph 2 of the order dated 30.08.2022 reads thus;
“2. Along with the OP, the petitioner has filed a present application for interim custody. On the said application, the respondent was directed to produce the minor but she did not produce the child and moreover, failed to file any counter to the present application. The allegations raised by the petitioner through his affidavit filed in support of the present application stands uncontroverted. If the respondent has any such adulterous relationship, and that she is residing with such a person, definitely the minor at this tender age has nothing to gain from such a distresssful atmosphere. Under the given circumstances, the petitioner, who is the father of the child, is entitled to get custody of the minor. The petitioner has submitted that he has other family members to look after the child. Therefore, I am inclined to allow the petitioner's prayer for inteirm custody of the child.
2. On 11.01.2023, when this original petition came up for admission, this Court issued notice to the respondent. The learned counsel for the petitioners was permitted to take out notice to the respondent through his counsel before the Family Court, Thrissur, where GOP No.1157 of 2022 is pending consideration. This Court granted an interim order staying all further proceedings in pursuance to Ext.P3 order, for a period of one month.
3. Today, when the matter is taken up for consideration, the learned counsel for the respondent would point out the order of the Family Court dated 17.09.2022. The said proceedings reads thus;
“The petitioner is present. The Respondent has produced the minor. The counsel for the respondent has undertaken to handover the minor to the petitioner. The respondent's counsel has requested for interim custody. Heard both sides, interim custody allowed to the respondent-mother from 10 a.m. on 2nd and 4th Friday till 4 p.m. on the following Sunday.
Referred for counselling. Adjourned to 23.09.2022.”
4. The learned counsel for the respondent would submit that, on 17.09.2022, the 1st petitioner produced the minor child and the interim custody of the minor child is granted to the respondent-father.
5. The learned counsel for the petitioners would submit that, in view of the proceedings dated 17.09.2022 of the Family Court, the petitioners may be permitted to withdraw this writ petition, leaving open the legal and factual contentions, without prejudice to the right of the 1st petitioner to challenge the said order, if found necessary, in appropriate proceedings.
6. Based on the aforesaid submission made by the learned counsel for the petitioners, this original petition is dismissed as withdrawn, without prejudice to the aforesaid right of the 1st petitioner.
Consequently, the interim order granted in this original petition, on 11.01.2023, is vacated.
In case the minor child is with the 1st petitioner-mother, on the strength of the aforesaid interim order, she shall handover the custody of the child to the respondent-father forthwith. The parties shall abide by the order dated 17.09.2022 of the Family Court, until the same is modified by the said court.
