Dismissed

Nobby.M.George v. Jossy Joseph

Kerala HC17 Mar 2021RP/179/2020

Case brief

AI extract

What is this about?

Review petition arising from a dismissal of a Habeas Corpus petition involving visa and custody disputes was dismissed in limine. The Court held there was no error in declining writ jurisdiction to reopen concluded family court proceedings for visitation when the child resides in the USA, advising the petitioner to approach the Family Court.

What did the court decide?

The review petition is dismissed with liberty to move the Family Court for any relief.

Nobby.M.George Vs Jossy Joseph — Child Custody and Guardianship | Kerala HC (2021)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942

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RP.No.179 OF 2020 IN WP(Crl.). 331/2017

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AGAINST THE JUDGMENT IN WP(Crl.)NO.331/2017 DATED 25.11.2019

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REVIEW PETITIONER/S:

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NOBBY.M.GEORGE, AGED 45 YEARS, S/O.LATE M.V.GEORGE, MARATTUKULAM HOUSE, KURISUMMOODU POST, CHETHIPUZHA VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.

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BY ADV. SRI.P.KURUVILLA JACOB

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RESPONDENT/S:

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1 JOSSY JOSEPH, AGED 42 YEARS, D/O.M.D.JOSEPH, MANALIL JOLLY HOUSE, MUTTAR P.O., KUTTANADU TALUK, ALAPPUZHA DISTRICT, NOW RESIDING AT ERSKINE COURT, NANUET-10954, NEW YORK, U.S.A.

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2 THE SECRETARY, MINISTRY OF FOREIGN AND EXTERNAL AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI, PIN-110001.

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3 CONSULATE GENERAL OF INDIA, UNITED STATES OF AMERICA, 3 EAST, 64TH STREET, NEWYORK, NY-10065.

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R2-3 BY SRI.SUVIN R.MENON, CGC BY ADV.P.C.HARIDAS

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R.P.No.179/2020 2

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ORDER

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Dated this the 17th day of March 2021

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A.Muhamed Mustaque, J.

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This review petition arises from the judgment in a Habeas Corpus matter. The dispute between the petitioner and the respondents in regard to the child was settled by the judgment of the Family Court in O.P.No.986/2012. The petitioner was given visitation rights to take custody of the child on the preceding day of every second Saturday at 5 p.m. and he has to hand over the child back to her custody at 5 p.m. on the succeeding Sunday. It is submitted that the child is now residing with the first respondent-mother in USA. The petitioner moved an execution petition before the Family Court. By Ext.P4 order produced along with W.P.(Crl.) No.331/2017, the Family Court passed the following order:

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“Now the child is in USA as submitted by the parties. So at present the visitation right cannot be exercised. So this E.P.is closed for the time being, on the assurance that the judgment debtor will bring the child to Kerala, during school vacation, under intimation to the Decree Holder. So this E.P. is closed for the time being.

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R.P.No.179/2020 3

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That was challenged before this Court in O.P. (FC) No.28/2017. This court affirmed the order of the Family Court observing that the order of this Court will not preclude the petitioner from taking any further action if possible in order to modify the directions issued and also to take further steps, in accordance with law. Taking cue, the petitioner has moved this Habeus Corpus petition. This Court, by a detailed judgment dated 25.11.2019, dismissed the Habeas Corpus petition. Aggrieved by the dismissal, this review petition has been filed. This Court specifically observed that there is no illegal detention of the child and on observing the proceedings of the execution court as well as the challenge made thereon before this Court, this Court dismissed the Habeas Corpus petition by Ext.P5 judgment.

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The execution court as well as this Court declined to acknowledge the visitation rights of the petitioner for the reason that since the child is residing at USA, such visitation rights cannot be exercised practically. That was affirmed by this Court in Ext.P5 judgment. It may be inappropriate for this Court invoking the writ jurisdiction of Habeas Corpus to acknowledge those rights conferred on him vide

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R.P.No.179/2020 4

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Ext.P2 judgment of the Family Court in O.P.No.986/2012. If this Court acknowledges such right, that would amount to as good as reopening the proceedings already concluded vide Exts.P4 and P5 proceedings. That is one of the reasons on which this Court declined the Habeas Corpus petition. We, therefore, find that there is no apparent error in declining the exercise of a writ jurisdiction to produce the child before this Court for issuance of a writ of Habeas Corpus. No doubt, as observed by this Court in Ext.P5 judgment, the petitioner is free to move the Family Court itself for any relief, including restoration of the rights in accordance with law.

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Reserving such liberty, this review petition is dismissed in limine.

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Sd/-

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A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

R.P.No.179/2020 5

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE I TRUE COPY OF THE ORDER DATED 18.02.2019 IN WP(CRL.)331/2017. ANNEXURE II TRUE COPY OF ORDER DATED 02.04.2019 ON I.A.NO.2/2019 FILED IN WP(CRL)331/2017. ANNEXURE III TRUE COPY OF I.A.NO.6/2019 FILED IN W.P. (CRL.) 331/2017 ALONG WITH EXHIBIT P9 DOCUMENT.

Nobby.M.George v. Jossy Joseph

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Nobby.M.George v. Jossy Joseph

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