Disposed

Shiny a v. Antony Bijoy Austin

Kerala HC27 Jun 2018OP (FC)/331/2018

Case brief

AI extract

What is this about?

This court disposed of a writ petition challenging a Family Court order refusing to grant temporary custody of a reluctant child. The High Court directed the Family Court to pass appropriate interim orders regarding the custody of the youngest child within one month.

What did the court decide?

Directed the Family Court, Kollam to pass appropriate interim orders regarding custody of the youngest child within one month.

Shiny a Vs Antony Bijoy Austin — Child Custody and Guardianship | Kerala HC (2018)

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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 C.K.ABDUL REHIM &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY, THE 27TH DAY OF JUNE 2018 / 6TH ASHADHA, 1940

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OP (FC).No. 331 of 2018

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AGAINST THE ORDER IN OP 1088/2017 of FAMILY COURT,KOLLAM DATED 12-03-2018

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PETITIONER

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SHINY A KURISSADI PADINJATTATHIL HOUSE, SAKTHIKULANGARA P.O, SAKTHIKULANGARA, KOLLAM DISTRICT.

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BY ADVS.SRI.SUBHASH CYRIAC SMTSHEEBA JOSEPH SRI.S.SREEJITH (S-3453)

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RESPONDENT:

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ANTONY BIJOY AUSTIN, S/O. BALDUVIN AUSTIN, KURISSADI BUNGLOW, SAKTHIKULANGARA, SAKTHIKULANGARA VILLAGE, KOLLAM DISTRICT REPRESENTED BY HIS MOTHER AND POWER OF ATTORNEY HOLDER, FRANSEENA PRESSY, W/O. BALDUVIN AUSTIN, KURISSADI BUNGLOW, SAKTHIKULANGARA, SAKTHIKULANGARA VILLAGE, KOLLAM DISTRICT - 691 581.

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 27-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (FC).No. 331 of 2018 (R)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 20-09-17 IN WP(CRL) NO.329/17 OF THIS HONOURABLE COURT.

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EXHIBIT P2 TRUE COPY OF THE OP(GW) NO. 1088/2017 FILED BEFORE THE FAMILY COURT, KOLLAM BY THE RESPONDENT.

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EXHIBIT P3 TRUE COPY OF THE B'DIARY SHOWING THE ORDER DATED 12-03-18 OF THE FAMILY COURT, KOLLAM.

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RESPONDENTS' EXHIBITS:

NIL

TRUE COPY

PS TO JUDGE

C.K.ABDUL REHIM

R.NARAYANA PISHARADI, JJ. *************************** O.P.(FC) No.331 of 2018

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Dated this the 27^th day of June, 2018

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JUDGMENT

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R.Narayana Pisharadi, J

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The petitioner herein is the first respondent in O.P.(GW) No.1088/2017 on the file of the Family Court, Kollam. The aforesaid petition is filed by her husband for getting custody of their three children.

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This Original Petition is filed by the petitioner against her husband alleging that on 12.03.2018, the youngest child was produced before the Family Court and that the Court directed her to hand over the custody of the child to him observing that the child was reluctant to go with her. The petitioner challenges the aforesaid order passed by the Family Court.

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Notice was served on the power of attorney holder of the respondent but there is no appearance for him. We have heard the learned counsel for the petitioner.

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O.P.(FC) No.331/2018

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W.P.(Crl) No.329/2017 was earlier filed before this

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Court by a friend of the petitioner herein alleging that the petitioner was under the illegal custody of her parents. The aforesaid writ petition was disposed of by this Court with a direction that the detenue shall be free to reside anywhere she wanted. But, it was observed by this Court that it will not be appropriate to separate the youngest child from her and that it is for the Court below to decide all the disputes between the parties.

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The details of the proceedings which took place in the Family Court in O.P.(GW) No.1088/2017 are revealed from Ext.P3, the copy of the proceedings sheet in that case. The entries in Ext.P3 are extracted below:

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“16/09/2017

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Petitioner filed the OP(GW) through Adv.I.Sowfiuar along with vakalath, IA, documents... etc. for getting custody of ward. The O.P numbered as 1088/17 for issuing notice and for return of notice to 16/12/2017.

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IA posted to 18/09/17.

O.P.(FC) No.331/2018

19/12/17

Power of Attorney holder of the petitioner and respondent are present. For objection if any. Wards are produced. Younger ward is handed over to the Power of Attorney of the petitioner till 23/12/17. For production of ward

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23/12/17

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23/12/17

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Power of Attorney holder of the petitioner is present. Respondent is present. Younger ward is returned to the respondent. For further production of the ward.

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24/1/18

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24/1/18

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No sitting. Notified to

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2/2/218

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2/2/18

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Petitioner and Respondent are present. Ward is with the petitioner. Petitioner is directed to return the ward at 10 am on 5/2/18. For further production of the ward

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24/2/18

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24/2/18

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Power of Attorney of the Petitioner is present. Respondent is absent. Respondent is

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O.P.(FC) No.331/2018

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directed to produce the ward before court on

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3/3/18

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3/3/18

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Power of Attorney of the petitioner is present. Respondent appeared along with the ward. Ward is handed over to the Power of Attorney of the petitioner till 11 am on

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5/3/18

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5/3/18

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Power of Attorney of the petitioner is represented. Respondent is absent. Ward is returned to the respondent. For further production of the ward.

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12/3/18

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12/3/18

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Petitioner and Respondent are present. Younger ward is produced. The ward is reluctant to go with the respondent. Hence the ward is returned to the petitioner. Parties are directed to appear before the Nodal Officer today itself for mediation.

Await report.

5/5/18

O.P.(FC) No.331/2018

18/4/18

I.A.974/18 allowed. Hearing advanced. For hearing in IA 1881/17.

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19/4/18

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Petitioner and Respondent is present. Call along with IA 1881/17.

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24/4/18

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Petitioner and respondent are present. For hearing on IA 1881/17.

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25/4/18

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Camp day. Notified to

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26/4/18

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26/4/18

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No sitting. Notified to

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30/4/18

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Power of Attorney holder of the petitioner and respondent are present. IA No.1881/17 is taken for hearing. The counsel for the respondent stated before the court that the court is taking a

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O.P.(FC) No.331/2018

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prejudiced view and the respondent will not get a fair trial in this court. Hence the Hon'ble High Court is addressed to transfer the case to any other court. Await order.

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14/5/18

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Order dated 30/4/18 is suo moto reviewed. Since I am on superannuation on 31/5/18 and another officer will take charge on 1/6/18 I am not addressing the Hon'ble High Court to transfer the case from this court.

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For hearing the IA 1881/17

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The aforesaid proceedings in the Family Court would show that the youngest child was in the custody of the petitioner as well as the respondent for short durations and no interim arrangement was made by the Family Court with regard to custody of that child. In our considered opinion, the welfare of the child is of paramount importance and it is only proper that the Family Court shall make an interim arrangement regarding custody of the youngest child till the disposal of O.P.(GW) No.1088/2017, after affording opportunity of hearing to both

O.P.(FC) No.331/2018

parties.

Consequently, we direct the Family Court, Kollam to pass appropriate orders making an interim arrangement regarding the custody of the youngest child Rithin Bijoy Austin, within a period of one month from the date on which the petitioner herein produces a copy of this judgment before that Court. The Family Court may, if necessary, advance the hearing of the case before that court. The Original Petition is disposed of accordingly.

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(sd/-)

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C.K.ABDUL REHIM, JUDGE

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

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jsr

Shiny a v. Antony Bijoy Austin

Case brief

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Shiny a v. Antony Bijoy Austin

Case brief

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