Partly allowed

Suresh Babu v. Sajina

Kerala HC11 Sept 2018OP (FC)/460/2018

Case brief

AI extract

What is this about?

This High Court, invoking supervisory jurisdiction under Article 227 of the Constitution, set aside specific observations in a Family Court order that were deemed to curtail the petitioner's right to seek interim custody of minor children. The expugned observations deemed the petition filed belated and the petitioner was allowed to seek fresh custody applications.

What did the court decide?

The original petition is allowed; the impugned order allowing for interaction through Sheristadar is expunged and the order set aside to that extent. Petitioner is at liberty to file fresh petitions f

Suresh Babu Vs Sajina — 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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TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940

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OP (FC).No. 460 of 2018

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AGAINST THE ORDER IN I.A.NO.269/2018 IN JUDGMENT IN OP 683/2017 ON THE FILE OF THE FAMILY COURT, VADAKARA DATED 24-05-2018

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PETITIONER/PETITIONER/PETITIONER:

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SURESH BABU AGED 43 YEARS S/O.GOVINDAN, KOLLERI MEETHAL, ARIKKULAM, KOYLANDY TALUK.

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BY ADV. SRI.C.R.SIVAKUMAR

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RESPONDENT/RESPONDENT/RESPONDENT:

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SAJINA, D/O. SURENDRAN, AGED 38 YEARS, MADATHIL HOUSE, KOLLAM P.O., PANTHALAYAM DESOM, KOYILANDY TALUK, PIN-673305.

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O.P.(FC) No.460/2018

JUDGMENT

The petitioner herein is the petitioner in O.P.No.683/2017 on the file of the Family Court, Vadakara. The respondent is the respondent before the court below. The original petition before the court below was filed seeking permanent custody of the minor children born out of the wedlock between the parties. The petitioner filed I.A.No.269/2018 in the said original petition praying for interim custody of the minor children for a period of one month during the mid-summer vacation of the school. The said petition was filed on 30.4.2018. The Family Court considered the matter in May, 2018 and passed Ext.P1 order on 24.5.2018. It was found that the petitioner had filed the application for interim custody only on 30.4.2018, after one month of the closure

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of the school for summer vacation, and therefore the petitioner had no bonafide intention to obtain custody of the children. If he had bonafinde intention to obtain custody of the children during the vacation, he ought to have filed the petition earlier, is the observation made.

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O.P.(FC) No.460/2018

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On that basis the request was declined. The petitioner is approaching this court for challenging the said order by invoking the supervisory jurisdiction vested under Article 227 of the Constitution of India

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2. We take note of the fact that the relief sought for in I.A. No.269/2018 has become infructuous, because the prayer was only for getting interim custody of the children during the mid-summer vacation in the year 2018, which stands expired by the end of May, 2018. But learned counsel appearing for the petitioner pointed out that, the court below had made a further observation as follows:

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“ The petitioner can interact with the children in the presence of the Sheristadar or Pincipal Counsellor of this Court once in a month on any working Saturdays, which is a holiday for the school till the disposal of the case. For that purpose, the petitioner has to file application in advance, at least on the previous Monday”.

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3. According to learned counsel for the petitioner,

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the above observation was totally unwarranted, considering the relief sought for in the interim application. Such an observation is causing severe

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O.P.(FC) No.460/2018

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prejudice to the rights of the petitioner to seek interim custody of the minor children during pendency of the original petition before that Court.

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4. We find merit in the contention raised on the above aspect. We notice that the court below had not made any adjudication with respect to the right of the petitioner to have interim custody of the children during

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the period when the children are attending the school or during the period of any coming vacations. Therefore, the above quoted observations will curtail the rights of the petitioner to approach the Family Court during appropriate times, seeking interim custody of the minor children. Hence, the above quoted observation need to be expunched from Ext.P1 order.

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5. Hence the above original petition is hereby allowed. The order passed by the Family Court, Vadakara, in I.A.249/2018 in O.P.No.683/2017 is set aside to the extent of the observations contained therein, which is noted in Paragraph 2 of this judgment. It is made clear that the petitioner will be at liberty to approach the Family Court in appropriate fresh petition/petitions seeking interim custody of the minor child, during the

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O.P.(FC) No.460/2018

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pendency of the O.P.

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Needles to observe that if any such application is filed, the Family Court shall consider it on the merits, untramelled by the observations which is set aside as

above.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

R. NARAYANA PISHARADI

JUDGE

al/-

O.P.(FC) No.460/2018

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1ORDER IN IA NO.269/2018 IN OP NO.683/2017 ON THE FILE OF THE HON'BLE FAMILY COURT, VATAKARA

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RESPONDENTS EXHIBITS : NIL

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TRUE COPY

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P.S TO JUDGE

Suresh Babu v. Sajina

Case brief

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Suresh Babu v. Sajina

Case brief

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