Disposed

S. Syamlal v. S. Lathika

Kerala HC22 Jan 2020Con.Case(C)/33/2020

Case brief

AI extract

What is this about?

The Court addressed a contempt petition regarding non-compliance with a Family Court order on interim custody. Acknowledging arguments about lack of hearing and the petitioner's criminal charge under POCSO, the Court directed the respondent to surrender the child to the petitioner from 13.01.2020 for one week.

What did the court decide?

Directing respondent to give interim custody of the child to the petitioner from 13.01.2020 for one week.

S. Syamlal Vs S. Lathika — Child Custody and Guardianship | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941

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Con.Case(C).No.33 OF 2020 IN OP (FC). 516/2019

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AGAINST THE JUDGMENT IN OP (FC) 516/2019 OF HIGH COURT OF KERALA

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PETITIONER/PETITIONER IN THE OP(FC):

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S. SYAMLAL AGED 31 YEARS, S/O. SASIDHARAN, SANTHIBHAVANAM, MERA NAGAR - 181, MUNDAKKAL EAST, MUKDAKKAL VILLAGE, KOLLAM DISTRICT.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT/RESPONDENT IN THE OP(FC):

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S. LATHIKA, W/O. K. LALU, AGED 55 YEARS, LATHIKA MANDIRAM, MATHILIL P.O., THRIKKADAVOOR VILLAGE, KOLLAM-691 601.

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BY SRI.VINOY VARGHESE KALLUMOOTTIL

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THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Cont. Case (C)No.33 of 2020

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JUDGMENT

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Dated this the 22^nd day of January, 2020

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S.Manikumar, C.J.

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Alleging non-compliance of the judgment dated 13.11.2019 in O.P. (F.C.)No.516 of 2019, instant contempt petition is filed. When the contempt case came up for admission on 9.1.2020, we passed the following order:

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“Alleging wilful disobedience of the judgment dated 13.11.2019 in O.P.(FC) No. 516 of 2019, instant Contempt Petition is filed by the father of the minor child, Sivadalal, aged 2 ½ years. The respondent is the mother-in-law of the petitioner.

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Going through the impugned judgment, we could find that a Hon'ble Division Bench of this Court, after considering the fact that a criminal case has been registered against the petitioner, and taking note of the decision of this Court in Suhara v. Muhammed Jaleel¹ , has ordered interim custody of the child to the petitioner. Operative portion of the impugned judgment reads thus:

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“Hence the petitioner is given interim custody of the child till the disposal of the original petition. But the respondent is also given interim custody of the child on the 2nd and last Saturdays from 10.00 a.m. to the ensuing Sunday at 4.00 p.m. of each month. The venue of exchange of the child shall be the Family Court, Kollam. The Family Court is directed to dispose of the original petition, untrammelled by the observations made above.”

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When the matter came up for consideration, Mr. Binoy Varghese Kallumoottil has taken notice on behalf of the respondent/mother-in-law. He submitted that the impugned

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1 2019 (2) KLT 960

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Cont. Case (C)No.33 of 2020

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judgment has been rendered without providing an opportunity of hearing to the respondent. According to him, the respondent has filed vakalath on 23.11.2019 and registry has returned the same stating that O.P.(FC) No. 516 of 2019 was disposed of on 13.11.2019 itself. Contending that the respondent was not heard, a review petition has been filed and the same is pending.

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Per contra, Mr. B. Mohanlal, learned counsel for the petitioner, submitted that the order of the Family Court dated 08.07.2019 has been modified by a Hon'ble Division Bench on 13.11.2019. According to him, the respondent has neither complied with the order of the Family Court or this Court, and that there is wilful and intentional disobedience. It is also submitted that eventhough a review petition is stated to have been filed in December, 2019, steps are not taken to bring it before the Hon'ble Division Bench, which heard the said OP(FC).

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Mr. Binoy Varghese Kallumoottil, learned counsel for the respondent, reiterated that the petitioner, being accused of an offence in a case under the provisions of the Protection of Children from Sexual Offences Act, is not entitled to get the interim custody of the child.

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Though a review petition has been filed, this Court is not entering into the arena as to whether the impugned judgment has to be reviewed or not. Even assuming without admitting for argument sake, judgment of this Court is stated to have been rendered without hearing. Still, we are of the view, the respondent is bound to comply with the order of the Family Court dated 08.07.2019 in I.A. No. 1712 of 2018 in OP(G& W) No. 780 of 2018, which directed, interim custody of the child should be with the petitioner every month from 10 a.m. of the first day of the month till 5 p.m of the 7^th day of the month in the court premises. Though the respondent has not given the interim custody of the child from the first day of the

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Cont. Case (C)No.33 of 2020

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month, owing to the pendency of the review petition before the Hon'ble Division Bench, as an interim measure, we direct that the interim custody of the child shall be given to the petitioner from 13.01.2020 onwards for one week. The respondent shall move the Review Petition.

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Post the Contempt Case after 10 days. ”

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On this day, when the contempt case came up for hearing, Mr.Vinoy Varghese Kallumoottil, learned counsel for the alleged contemnor submitted that as per the directions contained in the order dated 9.1.2020, interim custody of the child was given to the petitioner. Learned counsel further submitted that review petition filed against the judgment in O.P. (F.C.)No.516 of 2019 has been dismissed.

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Alleged contemnor will ensure compliance of the directions in O.P. (F.C.)No.516 of 2019, to make it clear that interim custody of the child should be given to the contempt petitioner on 25^th and 26^th of this month. Venue of handing over of child will be at Family Court, Kollam.

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With the above, contempt petition is closed. Parties would comply with the directions, without giving any room for further litigation.

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Sd/- S.Manikumar, Chief Justice

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Sd/- Shaji P.Chaly Judge

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vpv

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Cont. Case (C)No.33 of 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 THE TRUE COPY OF THE ORDER DATED 08.07.2019 IN IA NO.1712/2018 IN OP(G&W) NO.780/2018 OF THE FAMILY COURT, KOLLAM. ANNEXURE A2 THE TRUE COPY OF THE JUDGMENT DATED 13.11.2019 IN OP(FC) NO.516/2019 OF THIS HON'BLE COURT. ANNEXURE A3 THE TRUE COPY OF THE FIR AND FIS IN CRIME NO. 1292/2019 OF ANCHALUMMOOD POLICE STATION. ANNEXURE A4 THE TRUE COPY OF THE MEDICAL REPORT SUBMITTED BY THE STATION HOUSE OFFICER, ANCHALUMMOOD POLICE STATION BEFORE THE SESSIONS COURT, KOLLAM. ANNEXURE A5 THE TRUE COPY OF IA NO.4050/2019 SUBMITTED BY THE PETITIONER BEFORE THE FAMILY COURT, KOLLAM IN OP (G&W) NO.780/2018.

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ANNEXURE A6 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT AGAINST ANNEXURES-A5, APPLICATION BEFORE THE FAMILY COURT, KOLLAM.

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ANNEXURE A7 THE TRUE COPY OF THE IA NO.4261/2019 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOLLAM IN OP (G&W) NO.780/2018.

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/TRUE COPY/

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P.A. TO JUDGE

S. Syamlal v. S. Lathika

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S. Syamlal v. S. Lathika

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