IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
OP (FC).No.280 OF 2020
OP 212/2020 OF FAMILY COURT, VADAKARA
PETITIONER/PETITIONER
JOHN M.T
AGED 50 YEARS
S/O. LATE THOMAS, MATTATHIL HOUSE, PERAMBRA AMSOM
DESOM, KOORACHUND P.O., KOYILANDI TALUK, KOZHIKODE
DISTRICT-673 527.
BY ADV. SRI.C.R.SIVAKUMAR
RESPONDENT/RESPONDENT
MARY T.A.
AGED 70 YEARS
W/O. ABRAHAM, VADAKAN VEETIL, CHATHURAMBUZHA,
PAYYAVOOR, CHANDANKKAMPARA P.O., TALIPARAMBA TALUK,
KANNUR DISTRICT-670 633.
R1 BY ADV. SRI.ZUBAIR PULIKKOOL
R1 BY ADV. SRI.P.S.BINU
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05.01.2021,
ALONG WITH Tr.P(C).235/2020, WP(Crl.).286/2020, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
Tr.P(C).No.235 OF 2020
OP 212/2020 OF FAMILY COURT, VADAKARA
PETITIONER/RESPONDENT
MERY.T.A
AGED 70 YEARS
W/O.ABRAHAM, VADAKKAN VEETTIL, CHATHURAMBUZHA,
PAYYAVOOR, CHANDANAKKAMPARA P.O., TALIPARAMBA
TALUK, KANNUR DISTRICT, PIN-670633.
BY ADV. SRI.P.S.BINU
RESPONDENT/PETITIONER
JOHN.M.T,
AGED 50 YEARS
S/O.THOMAS, MATTATHIL HOUSE, PERAMBRA AMSOM
DESOM, KOORACHUND P.O., KOYILANDI TALUK,
KOZHIKKODE DISTRICT, PIN-673527.
R1 BY ADV. SRI.C.R.SIVAKUMAR
R1 BY ADV. SMT.MINI.M.NAIR
R1 BY ADV. SMT.GAYATHRI V NAIR
THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.01.2021, ALONG WITH OP (FC).280/2020, WP(Crl.).286/2020,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
WP(Crl.).No.286 OF 2020
PETITIONER
JOHN M.T
AGED 50 YEARS
S/O. LATE THOMAS, MATTATHIL HOUSE, PERAMBRA AMSOM
DESOM, KOORACHUND P.O., KOYILANDI TALUK,
KOZHIKODE DISTRICT, PIN-673527.
BY ADV. SRI.C.R.SIVAKUMAR
RESPONDENTS
1 THE DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF, TALAP,
KANNUR, PIN-670002.
2 THE STATION HOUSE OFFICER,
KOORACHUND POLICE STATION, KOORACHUND P.O.,
PERAMBRA VIA, KOZHIKODE DIST., PIN-673527.
3 MARY T.A,
AGED 70 YEARS
W/O.ABRAHAM, VADAKAN VEETIL, CHATHURAMBUZHA,
PAYYAVOOR, CHANDANKKAMPARA P.O., TALIPARAMBA
TALUK, KANNUR DISTRICT-670633.
R3 BY ADV. SRI.ZUBAIR PULIKKOOL
R3 BY ADV. SRI.P.S.BINU
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 05.01.2021, ALONG WITH OP (FC).280/2020, Tr.P(C).235/2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020
4
JUDGMENT
Dated : 5th January, 2021 M.R.Anitha, J.
1. O.P(FC).280/2020 has been filed by the petitioner/husband seeking early disposal of O.P.212/2020 pending before the Family Court, Vadakara, Kozhikode. O.P.212/2020 has been filed for custody of two minor children of the petitioner from the respondent.
2. It is the case of the petitioner that his wife along with her mother, father, sister and the elder daughter had been to Israel on 19.12.2019. His wife, father and sister jumped out from the tourist team and stayed there on some temporary visa/licence. The respondent/mother-in-law stayed with the petitioner at his residence till 10.3.2020. When the schools were shut down due to COVID-19 pandemic, the respondent along with children went to her home town near Taliparamba. Thereafter petitioner contacted the children and stayed with them till 8.5.2020 and on return, respondent promised to return with the children immediately after the lock down. The respondent is 70 years old and is not in a position to protect OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020 5 the welfare of the children. The respondent is not permitting the children to attend the on-line classes provided by the School and she is insisting the petitioner to bring the T.C. and conduct certificate from the school for sending the children to a nearby school of her relative. Hence the petitioner filed the above OP seeking custody of the children. Studies of the children were disrupted due to illegal confinement of the children of the respondent and it would affect their future. Hence he approached this court seeking a direction to the Family Court, Vadakara to dispose the above case within a short span of time.
3. Notice was issued to the respondent. Respondent appeared through counsel.
4. Tr.P.(C).235/2020 has been filed by the respondent in OP(FC).280/2020 seeking for transfer of OP.212/2020 on the file of the Family Court, Vadakara to Family Court, Kannur. According to the petitioner, who is the mother-in-law of the respondent, the daughter of the petitioner is now working abroad and the two minor children of the daughter aged ten years and seven years are residing with her at Payyannur in Kannur district. Relationship between the respondent and daughter of the petitioner is not cordial. It is not convenient for OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020 6 the petitioner to contest the case at Family Court, Vadakara which is situated more than 80 Kms away from her residence. The Family Court, Kannur is only 30 Kms away from her residence. She is aged 70 years and is suffering from old age diseases. Hence this petition.
5. Notice was issued to the respondent in this case. Respondent appeared through the counsel.
6. W.P.(Crl).286/2020 has been filed by the petitioner in O.P(FC).280/2020 to issue a writ of habeas corpus or any other appropriate writ directing respondents 1 and 3 to produce the corpus of the children, Olvia Maria John and Helna Rose John, and to release them from the illegal confinement/detention of the 3rd respondent/respondent in OP(FC).280/2020.
7. Notice was issued to the respondents. Respondents 1 and 2 appeared through the learned Senior Public Prosecutor and the 3rd respondent appeared through the counsel.
8. Heard both sides in all the cases.
9. Since parties in all the cases are almost same and the subject matter is also with regard to the custody of the children, all the cases were heard together and are being disposed of by a common judgment.
OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020 7
10. Petitioner in OP(FC).280/2020 would be referred hereafter, as the petitioner and the respondent as respondent. Admittedly the petitioner is the father of the minor children and the respondent is the maternal grand mother of the children. It is not in dispute that the mother of the minor children is abroad. It is submitted by the learned counsel for the respondent that mother of the children are now employed at Israel. Respondent in this case is residing in Kannur district, which according to her, is about 80 Kms away from the Family Court, Vadakara. That fact is not seen disputed. Admittedly children are also with her. So it is only just and proper to consider her plea for transfer of the case from the Family Court, Vadakara. Petitioner is residing at Perambra, Kozhikode. In the facts and circumstances, we find it expedient to transfer OP.212/2020 from Family Court, Vadakara to Family Court, Thalassery.
11. The grievance of the petitioner is that the respondent is an old lady and even according to her, she is suffering from old age ailments. Hence it will not be in the best interest of the children to continue the custody with the respondent. It is also his contention that the respondent has no permanent abode and is staying in the house of a relative with the petitioner's OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020 8 children. He has also got a complaint that the respondent is not in a position to bring up the children properly and hence an early disposal of the petition is absolutely necessary.
12. Admittedly the mother of the children is abroad and they are being presently looked after by the aged grand mother. But the custody of the children by the respondent/grand mother cannot be said as illegal. Hence, no interference at the instance of this court is warranted by exercising extra ordinary jurisdiction of this court under Article 226 of the Constitution of India.
13. In the result, Tr.P.(C).235/2020 is allowed, transferring OP.212/2020 from the Family Court, Vadakara to Family Court, Thalassery. Family Court, Vadakara shall transmit the records of OP.212/2020 forthwith to the Family Court, Thalassery. On receipt of the said records, the Family Court, Thalassery shall dispose of the OP as early as possible and at any rate, not later than six months from the date of receipt of the records from the Family Court, Vadakara. OP(FC).280/2020 is disposed of with the above direction. It is made clear that any application for interim custody of the children shall also be considered by the Family Court, if such an application is filed.
OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020 9
14. W.P.(Crl).286/2020 is found to be devoid of any merit and hence dismissed.
Sd/-
K.VINOD CHANDRAN Judge Sd/-
M.R.ANITHA Judge Mrcs/5.1.
OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020 10 APPENDIX OF OP (FC) 280/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE O.P.NO.212/2020 PENDING BEFORE THE FAMILY COURT, VADAKARA, KOZHIKODE.
EXHIBIT P2 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN O.P.NO.212/2020.
EXHIBIT P3 THE TRUE COPY OF THE IA NO.405/2020 IN OP NO.212/2020 DATED 12.6.2020 ON THE FILE OF THE FAMILY COURT, VADAKARA, KOZHIKODE.
EXHIBIT P4 THE TRUE COPY OF THE COUNTER IN IA NO.405/2020 IN OP NO.212/2020 DATED 16.6.2020 ON THE FILE OF THE FAMILY COURT, VADAKARA, KOZHHIKODE.
EXHIBIT P5 THE TRUE COPY OF THE TYPED COPY OF THE COMPLAINT BEFORE CHILD WELFARE COMMITTEE THALASSERY.
OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020 11 APPENDIX OF Tr.P(C) 235/2020 PETITIONER'S/S EXHIBITS:
ANNEXURE I THE COPY OF THE O.P.NO.212/2020 ON THE FILE OF FAMILY COURT, VADAKARA.
OP(FC).280/2020, WP(Crl).286/2020 and Tr.P(C).235/2020 12 APPENDIX OF WP(Crl.) 286/2020 PETITIONER'EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE OP NO.212/2020 BEFORE THE FAMILY COURT, VADAKARA, KOZHIKODE.
EXHIBIT P2 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN OP.NO.212/2020 ON THE FILE OF THE FAMILY COURT, VADAKARA.
EXHIBIT P3 THE TRUE COPY OF THE TYPED COPY OF THE COMPLAINT BEFORE CHILD WELFARE COMMITTEE THALASSERY.
EXHIBIT P4 THE TRUE COPY OF THE COMPLAINT WITH ACKNOWLEDGEMENT DATED 4.9.2020.