Allowed

Jess Mathew v. Joshy Abraham

Kerala HC12 Sept 2013OP (FC)/3221/2013

Case brief

AI extract

What is this about?

The High Court set aside an interim custody order passed by the Family Court in violation of natural justice due to lack of notice to the mother. However, following a consent agreement, custody was granted to the father for a specific period during Onam holidays with strict terms.

What did the court decide?

Order dated 10/9/13 set aside. Custody granted to respondent from 16.9/13 to 19.9/13 upon production of child and undertaking not to remove beyond Kerala.

Jess Mathew Vs Joshy Abraham — Child Custody and Guardianship | Kerala HC (2013)

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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 ANTONY DOMINIC

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& THE HONOURABLE MR. JUSTICE P.D.RAJAN

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THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935

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OP (FC).No. 3221 of 2013 (R)

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AGAINST THE ORDER/JUDGMENT IN OP 857/2008 of FAMILY COURT,ERNAKULAM

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PETITIONER(S):

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JESS MATHEW, AGED 44 YEARS, D/O.T.P.MATHAI, NAGARJUNA PEARL BAY, B-803, PUTHIYA ROD, K.P.VALLON ROAD, KOCHI-20.

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BY ADV. SRI.BABU KARUKAPADATH

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RESPONDENT(S):

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JOSHY ABRAHAM, AGED 49 YEARS, S/O.ABRAHAM, PAYYAPPALLY, BYPASS ROAD, ALUVA, ERNAKULAM DT 683101.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12-092013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(FC)NO.3221/13

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1:A TRUE COPY OF THE TERMS AND CONDITIONS OF THE COMPROMISE DECREE DATED 21.89.2009.

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EXT.P2: TRUE COPY OF THE ORDER DT 23.3.2010 IN IA NO.742/2010 IN OP NO.857/2008 OF THE HON'BLE FAMILY COURT.

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EXT.P3: TRUE COPY OF THE JUDGMENT DATED 15.7.2010 IN WPC NO.15866/2010, OF this HON'BLE COURT.

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EXT.P4: TRUE COPY OF THE ORDER DT 21.12.2011 IN IA NO.5532/2011 IN OP NO.2279/2011, OF THE HON'BLE FAMILY COURT, ERNAKULAM.

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EXT.P5: TRUE COPY OF THE MEMO DT 15.2.2012 FILED BY THE RESPONDENT IN OP NO.2279/2011.

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EXT.P6: TRUE COPY OF THE JUDGMENT DT 22.2.2012 IN OP NO.2279/2011 OF THE HON'BLE FAMILY COURT, ERNAKULAM.

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EXT.P7: TRUE COPY OF THE I.A.NO.2046/2012 IN OP NO.857/2008, FILED BY THE PETITIONER BEFORE THE HON'BLE FAMILY COURT.

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EXT.P8: A TREU COPY OF THE OBJECTION DATED 31.7.2012 FILED BY THE RESPONDENT IN IA NO.20476/2012 IN OP NO.857/2008.

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EXT.P9: TRUE COPY OF IA NO.2263/2012 FILED BY THE RESPONDENT BEFORE THE HON'BLE FAMILY COURT, SEEKING FOR CUSTODY OF THE CHILD FROM 25.8.2012 TO 30.8.2012 DURING ONAM VACATION.

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EXT.P10: TRUE COPY OF THE COUNTER AFFIDAVIT DATED 4.8.2012 FILED BY THE RESPONDENT IN EXT.P9 IA ALONG WITH THE LIST OF DOCUMENTS.

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EXT.P11: A TRUE COPY OF THE ORDER DT 10.8.2012 IN IA NO.2263/2012 IN OP NO.857/2008 OF THE HON'BLE FAMILY COURT, ERNAKULAM.

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EXT.P12: A TRUE COPY OF THE INTERIM ORDER DT 22.8.2012 IN OP(FC) NO.2720/2012, OF THIS HON'BLE COURT.

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EXT.P13: A TRUE COPY OF THE ORDER DT 6.9.2012 IN OP(FC) NO.2720/2012.

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EXT.P14: A TRUE COPY OF I.A.NO.3145/2013 FILED BY THE RESPONDENT BEFORE THE HON'BLE FAMILY COURT, SEEKING FOR CUSTODY OF THE CHILD FROM 12.9.2013 TO 21.9.2013 DURING ONAM VACATION ALONG WITH THE ORDR DATED 10.9.2013 OF THE HON'BLE FAMILY COURT, ERNAKULAM, IN THE SAID I.A.

//True Copy//

PA to Judge

ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== O.P(FC) No. 3221 OF 2013

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=======================

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Dated this the 12^th day of September, 2013

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J U D G M E N T

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Antony Dominic, J.

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This OP reflects the bitter fight of the parents of an 11 year old boy by name Abel Joshy Payyappally for his custody. What provoked the filing of this OP is the order passed by the Family Court, Ernakulam in IA No.3145/13 in OP No.857/08. The said OP was filed by the respondent father for permanent custody of the child. In that OP, respondent filed the aforesaid IA seeking a direction to the petitioner mother to hand over the custody of the minor son during the period from 16/9/13 till 21/9/13 when the father, who is working at Saudi Arabia will be in India. According to the petitioner, copy of the IA was served on her counsel. In that IA, Family Court passed order dated 10/9/13 stating that there was no representation on behalf of the petitioner and that the custody shall be given to the respondent from 16/9/13 till 21/9/13. In so far as the filing of the IA and what transpired thereafter, the petitioner has stated thus in para 17 of the OP.

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“This time also, the respondent served a copy of the IA No.3145/2013 to the counsel for the petitioner in the evening of 6.9.2013, which has been filed through his

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OP(FC) No.3221/13

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power of attorney holder, seeking custody of the child from 12/9/2013 to 21/09/2013 claiming that he will be in station during that period. Since the petitioner was not sure as to whether the respondent will be available in station as claimed by him, she enquired about the posting of the said IA before the Hon'ble Family Court on 7.9.13, 9.9.2013, 10.9.2013 and 11.09.2013. It is submitted that, till this date, 11.9.2013, the posting of the said IA had not been entered in the IA register maintained in the Hon'ble Family Court and the petitioner was under the bonafides belief that, the same will be moved by the respondent, as and when he becomes available in station during Onam Holidays. The petitioner was also taking steps to prepare and file objection to the said I.A.

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But to the shock and surprise of the petitioner, she received an intimation from the counsel that, there happened to be an order dated 10.9.13 by the Hon'ble Family Court, granting interim custody of the child from 16.9.2013 to 21.9.2013, by taking up IA No.3145/2013 without giving a posting date and as such in the absence of the counsel for the petitioner. It is respectfully submitted that, the said action of the Court below clearly shows the callous and capricious attitude of the Hon'ble Family Court in dealing with the matter and the arbitrariness in exercising the power vested in it.”

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When the OP was taken up, learned counsel for the respondent disputed the above claims in the OP. Therefore, this Court directed the Registry to obtain a report from the Family Court about the correctness of the averments of the petitioner. Accordingly, Registrar (Judicial) has made enquiries before the Family Court and submitted a report thus;

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“As directed, when contacted the Family Court, Ernakulam, it is informed that in the 'A' Diary of that court dated 10.9.13, it is stated that there was no

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OP(FC) No.3221/13

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representation for the respondent in I.A.No.3145/2013, notice was already served on the respondent, heard the counsel for the petitioner, issue notice to produce the child before the Court on 16.9.2013 and the interim custody of the child is given to the petitioner from 16.9.13 to 21.9.2013. In the I.A. Register also it is noted that I.A.No.3145/2013 was allowed”.

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Reading of the report therefore shows that Family Court made entry in the 'A' Diary only on 10/9/13. In the IA register also, it is noted that the IA has been allowed. This therefore means that the IA was not posted and if that be so, we cannot find fault with the petitioner for the absence of her counsel when the IA was moved by the counsel for the respondent. In other words, the situation that emerges is that the order in IA No.3145/13 has been passed by the Family Court behind the back of the petitioner.

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The procedure adopted by the Family Court, in our view, is absolutely irregular and at any rate is in violation of the principles of natural justice and therefore the order dated 10/9/13 passed by the Family Court in IA No.3145/13 in OP No.857/08 cannot be sustained and is set aside. However, fact remains that the father is reaching India on 15/9/13 and his main mission appears to be to enjoy the company of the child. Therefore, denying him that opportunity will be too harsh. In view of the

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OP(FC) No.3221/13

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above, we sought the views of the learned counsel for the petitioner about giving custody of the child to the father during Onam holidays and learned counsel with the consent of the petitioner also, who is present in Court, graciously enough agreed to give custody of the minor child to the respondent during 16/9/13 till 19/9/13.

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Petitioner will produce the child at the office of the Family Court, Ernakulam between 10 a.m and 11.00 a.m on 16/9/13 and the respondent shall return the child by making him available at the office of the Family Court between 4.00 p.m and 5 p.m on 19/9/13. This order is passed in view of the specific undertaking given by the learned counsel for the respondent that the child will not be removed to anywhere beyond the state of Kerala during the period when he has custody over him.

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OP is disposed of as above.

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Sd/-

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ANTONY DOMINIC, Judge

Sd/-

P.D.RAJAN, Judge

//True Copy//

PA TO JUDGE

Jess Mathew v. Joshy Abraham

Case brief

What is this about?

What did the court decide?

Jess Mathew v. Joshy Abraham

Case brief

What is this about?

What did the court decide?

What the court decided

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