Disposed

V.P.Kavitha Ranjini @ Urvashi v. Sri. Manoj K.Jayan

Kerala HC2 Jul 2012OP (FC)/1934/2012

Case brief

AI extract

What is this about?

This original petition challenged an order staying an ex parte custody decree. The High Court directed the Family Court to hear pending applications during July 2012, fixed specific dates for visitation without overnight custody, and left open the parties' contentions regarding the decree's nature.

What did the court decide?

Petition disposed; visitation fixed for 6th and 7th July 2012 without overnight custody; Family Court to dispose of interlocutory applications in July 2012 hearing both parties.

V.P.Kavitha Ranjini @ Urvashi Vs Sri. Manoj… — Child Custody and Guardianship | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934

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OP (FC).No. 1934 of 2012 (R)

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I.A.NOS.1638 & 1625/2012 IN OP.964/2009 OF FAMILY COURT,ERNAKULAM

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PETITIONER:

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V.P.KAVITHA RANJINI @ URVASHI, AGED 41 YEARS, D/O.LATE PARAMESWARAN,RESIDING AT 143/3,9TH STREET CHAKRAPANI NAGAR,MADHURAVOYAL,CHENNAI-600095.

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BY ADVS.SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE SRI.S.M.PRASANTH

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RESPONDENT:

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SRI. MANOJ KADOM POOTHRA MADOM JAYAN @ MANOJ K.JAYAN 'THEJUS',1/4C1,KUREEKKAD.P.O THRIPOONITHURA,PUTHIYAKAVU,ERNAKULAM-682305.

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BY ADV. SMT.SANGEETHA LAKSHMANA

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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O.P.(F.C.) NO.1934 OF 2012 R

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Dated this the 2^nd day of July, 2012

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JUDGMENT

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K.T.Sankaran, J.

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The petitioner filed G.O.P.No.964 of 2009 on the file of the Family Court, Ernakulam, against the respondent for custody of their girl child, namely, M.K.Tejalakshmi @ Kunjaatta, aged 12 ½ years.

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It would appear that on 17.5.2012, the respondent was set exparte before the Family Court. It is submitted that he filed an application to set aside the exparte order. It is contended that without noticing the filing of the application to set aside the exparte order, the Family Court passed a decree on 28.5.2012. According to the respondent, the decree dated 28.5.2012 was an exparte decree, while, according to the petitioner, it was a decree on the merits.

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The respondent filed an application before the Family Court to set aside the exparte decree. He also filed an application to stay the operation of the decree dated 28.5.2012.

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O.P.(F.C.) NO.1934 OF 2012 R

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:: 2 ::

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The Family Court passed an order dated 11.6.2012 holding that the decree dated 28.5.2012 is an exparte decree and that, in the interests of justice, the operation of the judgment should be stayed till the disposal of the application under Order IX Rule 13 of the Code of Civil Procedure. The said order dated 11.6.2012 passed by the Family Court is under challenge in this Original Petition (FC).

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Sri.K.Ramakumar, the learned Senior Counsel appearing for the petitioner, submitted that the decree passed by the court below on 28.5.2012 is not an exparte decree at all and therefore, the Court has no jurisdiction to entertain an application under Order IX Rule 13 of the Code of Civil Procedure. He also raised a contention that even assuming that it is an exparte decree, the Court which passed the decree has no jurisdiction to stay the operation of its order except in the circumstances mentioned in sub-rule (2) of Rule 5 of Order XLI of the Code of Civil Procedure.

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Smt.Sangeetha Lakshmana, learned counsel appearing for the respondent, submitted that the respondent failed to appear before the Family Court on 28.5.2012 and the Court passed an exparte decree on 28.5.2012. Necessarily, the respondent has to

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O.P.(F.C.) NO.1934 OF 2012 R

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make an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the exparte decree, though an appeal against the exparte decree is also maintainable. The counsel for the respondent raised a contention that the respondent was set exparte on an earlier occasion and the application filed by him to set aside the exparte order is pending. Without noticing that application, the Family Court passed the decree dated 28.5.2012. If so, the decree cannot but be an exparte decree since the Court had no other option available and a decree on the merits could not be passed.

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On going through the final order passed by the court below in G.O.P.No.964 of 2009 dated 28.5.2012, it is seen that the main prayer made by the petitioner was not granted by the Family Court. On the other hand, the Family Court had granted visitation rights to the petitioner on specified dates and occasions. The operative portion of the judgment of the Family Court in G.O.P.No.964 of 2009 dated 28.5.2012, reads as follows:

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“In the result, the O.P., stands allowed on granting interim (over night) custody of the minor child Kum.M.K.Tejalakshmi @ Kunjatta born on 28/11/1999 to the petitioner, that is, for the first half of Onam and

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O.P.(F.C.) NO.1934 OF 2012 R

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Christmas vacations, and for 15 days during summer vacation, probably first half of April, in every year, or at the option of the child, i.e. with regard to the period alone, but without disturbing the studies of the child, until she attains majority; that, apart, petitioner is entitled to have access with the minor child on every second Saturdays and ensuing Sundays, once in a month, at the house of the maternal grand mother of the child (mother of petitioner), from 10 am till 4 pm, on second Saturday and Sundays. No order as to costs.”

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From the submissions made by the counsel on either side, we are given to understand that several applications are pending before the Family Court. An application filed by the respondent under Order IX Rule 13 of the Code of Civil Procedure is pending. An application for stay filed by the respondent was disposed of as per the order impugned in this O.P.(F.C.). Another application filed by the petitioner raising a preliminary objection that the application filed by the respondent under Order IX Rule 13 of the Code of Civil Procedure is not maintainable, is also pending.

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Going by the judgment passed by the court below, the visitation rights, for the time being, would be on the second Saturday

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O.P.(F.C.) NO.1934 OF 2012 R

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and Sunday during the month of July,2012. No vacation being available during this month, we are of the view that if sufficient arrangement is made for the visitation right of the petitioner during the month of July, the Family Court can be directed to dispose of all the pending applications during July itself.

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Accordingly, we dispose of the Original Petition (F.C.) as follows:

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a) The Family Court shall dispose of all the interlocutory applications during the month of July, 2012 itself, after hearing both parties.

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b) Instead of the visitation right during second Saturday and Sunday in July, 2012, we are of the view that the visitation right can be on 6^th and 7^th of July, 2012. On 6^th and 7^th July, 2012, the respondent shall produce the minor child before the Family Court at 10.30 AM. The petitioner can take the child with her and she shall return the child to the respondent at the premises of the Family Court at 4.30 PM on 6^th and 7^th . It is made clear that no overnight custody of the child is given to the petitioner, for the time being.

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O.P.(F.C.) NO.1934 OF 2012 R

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c) The observations in the order dated 11.6.2012 in I.A.Nos.1638 and 1625 of 2012 in G.O.P.No.964 of 2009 shall not be a bar to the contention of the petitioner that the decree dated 28.5.2012 is not an exparte decree. In other words, all the contentions of the parties in respect of the nature of the decree are left open.

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d) Both parties agree that they will abide by the aforesaid directions issued by this Court.

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e) Both parties agree that they will not request for any adjournment of the case before the Family Court in the matter of disposal of the interlocutory applications as referred to above. The Family Court need not entertain any request for adjournment, except on exceptional grounds.

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f) The parties shall appear before the Family Court on 6.7.2012 at 10.30 AM.

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(K.T.SANKARAN) Judge

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(M.L.JOSEPH FRANCIS) Judge

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ahz/

V.P.Kavitha Ranjini @ Urvashi v. Sri. Manoj K.Jayan

Case brief

What is this about?

What did the court decide?

V.P.Kavitha Ranjini @ Urvashi v. Sri. Manoj K.Jayan

Case brief

What is this about?

What did the court decide?

What the court decided

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