Disposed

Jibin Joseph v. the Union of India

Kerala HC9 Apr 2024WP(C)/3993/2018

Case brief

AI extract

What is this about?

Petitioners challenged a Magistrate's order under the Domestic Violence Act granting custody of minor children to the wife, contending the Magistrate lacked Family Court powers. As divorce proceedings were pending before the Family Court, the court declined to examine validity and permitted petitioners to seek custody there.

What did the court decide?

Writ petition closed; petitioners given liberty to move for custody before the pending Family Court proceedings, decisions there to be untrammeled by the Magistrate's order.

Jibin Joseph Vs the Union of India — Child Custody and Guardianship | Kerala HC (2024)

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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 EASWARAN S.

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TUESDAY, THE 9TH DAY OF APRIL 2024 / 20TH CHAITHRA, 1946

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WP(C) NO. 3993 OF 2018

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PETITIONERS:

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1JIBIN JOSEPH
AGED 36 YEARS, S/O. OUSEPH,
PADINJAREYATTAM HOUSE, COURT JUNCTION,
ETTUMANOOR P.O., KOTTAYAM - 686 631.

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2OUSEPH
AGED 65 YEARS, PADINJAREYATTAM HOUSE,
COURT JUNCTION, ETTUMANOOR P.O.,
KOTTAYAM - 686 631.

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3KUNJAMMA,
AGED 50 YEARS, W/O. OUSEPH,
PADINJAREYATTAM HOUSE,
COURT JUNCTION, ETTUMANOOR P.O.,

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KOTTAYAM - 686 631.

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BY ADVS.
SRI.ALEX.M.SCARIA
SMT.SARITHA THOMAS

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RESPONDENTS:

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1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO MINISTRY OF LAW AND JUSTICE, 4TH FLOOR, A-WING, SHASTRI BHAWAN, NEW DELHI - 110 001.

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2THE STATE OF KERALA BY SECRETARY
LAW DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.

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3 DHANYA DAVIS

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AGED 32 YEARS, D/O. DAVIS, EDATTUKARAN HOUSE,
MALA DESOM, MALA POST, THRISSUR - 680 732.

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BY ADVS.
SMT.KEERTHI SOLOMON, CGC
SRI.G.SREEKUMAR CHELUR

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WP(C) NO. 3993 OF 2018 -2-

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 3993 OF 2018 -3-

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JUDGMENT

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Petitioners challenge Ext.P4 order passed by the Judicial First Class Magistrate, Chalakkudy in an application under Section 21 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005. Aggrieved by the said order the petitioners had filed Ext.P5 appeal. In the present writ petition, the petitioners contended that under the Protection of Women from Domestic Violence Act (Act 43 of 2005) does not enable the Magistrate to exercise the power of a Family Court under the provisions of the Family Courts Act. Ignoring the said statutory mandate, the petitioners contended that the Magistrate has given custody of the minor children to the wife of the first petitioner.

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When this Court analyses the provision under Act 43 of 2005 it is clear that the Magistrate is vested with the powers to pass orders of custody of the minor children on an application by the wife. However, the

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WP(C) NO. 3993 OF 2018 -4-

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petitioners have a contention that in order to apply the provisions of Act 43 of 2005, there should be a specific finding that there is a domestic violence. Be that as it may it is now brought to the notice of this Court that the proceedings for divorce is pending before the Family Court. In such circumstances, this Court finds it is unnecessary to examine the validity of the orders passed by the Magistrate under the Act 43 of 2005. Suffice to say that the petitioners will be at liberty to move necessary application if so required for custody of the children and it will be upto the Family Court to take a decision on that untrammeled by any observations contained in Ext.P4 order hereunder.

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Writ petition is closed with the aforesaid observations.

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 Sd/-

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EASWARAN S.
JUDGE

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vv

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WP(C) NO. 3993 OF 2018 -5-

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APPENDIX OF WP(C) 3993/2018

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PETITIONER EXHIBITS

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EXHIBIT P1PETITION-MC 102/2017 FILED BY THE 3RD
RESPONDENT BEFORE THE JFCM COURT
CHALAKKUDY UNDER THE DV ACT.

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EXHIBIT P2TRUE COPY OF THE ORDER DATED
24.10.2017 IN MC 102/2017 BEFORE THE
JFCM COURT CHALAKKUDY.

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EXHIBIT P3TRUE COPY OF THE CW OP 1161 OF 2017 IN
THE FAMILY COURT ETTUMANOOR FILED BY
THE 1ST PETITIONER.

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EXHIBIT P4TRUE COPY OF THE ORDER DATED
24.10.2017 IN CRL.M.P.NO. 10245/2017
IN MC 102/2017 BEFORE THE JFCM COURT
CHALAKKUDY.

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EXHIBIT P5TRUE COPY OF THE CRL. APPEAL NO.
40/2018 BEFORE THE DISTRICT AND
SESSIONS COURT, THRISSUR.

Jibin Joseph v. the Union of India

Case brief

What is this about?

What did the court decide?

Jibin Joseph v. the Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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