Sreeshma A. Devan vs Nitheesh Kumar O

Kerala High Court

Sreeshma A. Devan vs Nitheesh Kumar O on 17 May, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE SATHISH NINAN
                                 &
         THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
     FRIDAY, THE 17TH DAY OF MAY 2024 / 27TH VAISAKHA, 1946
                     OP (FC) NO. 304 OF 2024
      IN OP(G&W) NO.210 OF 2024 OF FAMILY COURT, KATTAPPANA


PETITIONER(S/RESPONDENT:
            SREESHMA A. DEVAN
            AGED 27 YEARS, D/O VASUDEVAN, PURAMALA ANCHANIL,
            VALAKUZHYIL P.O, EZHUMATTOOR VILLAGE, MALLAPPALLY
            TALUK, PATHANAMTHITTA DISTRICT, PIN - 689544.

            BY ADVS.
            MANU RAMACHANDRAN
            T.S.SARATH
            M.KIRANLAL
            R.RAJESH (VARKALA)
            SAMEER M NAIR
            SAILAKSHMI MENON
            JOTHISHA K.A.
            SHIFANA M.
            SAJESH K. SAM
RESPONDENT(S)/PETITIONER:
             NITHEESH KUMAR O.
             AGED 37 YEARS, S/O OMANAKUTTAN BLOCK NO.533,
             CHOTTUPARA P.O. & KARA, PARATHODU VILLAGE,
             UDUMBANCHOLA TALUK, IDUKKI DISTRICT AND PRESENTLY
             RESIDING AT VAZHATHOPPU VEEDU, NARANGANAM WEST P.O.,
             KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT,
             PIN - 689642.
             BY ADVS.
             M.K.CHANDRA MOHANDAS
             SHAKTHI PRAKASH(K/1170/2009)


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
17.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(FC)NO.304 OF 2024                     2




                              JUDGMENT

Harisankar V. Menon, J.

The petitioner in this Original Petition, filed under Article 227 of the Constitution of India, and the respondent herein are wife and husband.

2. The respondent had filed O.P.(G&W) No.210 of 2024 before the Family Court, Kattappana, praying for the custody of the minor girl child - 'Nivedya'. The Family Court, Kattappana, by an order dated 09.04.2024, in I.A. No.3 of 2024 in O.P.(G&W) No.210 of 2024, had issued an exparte order of temporary injunction against the petitioner herein from forcefully taking the minor child 'Nivedya' except under the due process of law till disposal of the original petition.

3. It is the above order passed by the Family Court, Kattappana, that is under challenge in this Original Petition. The main contention raised in this Original Petition is that, the child was with the petitioner all along. On 09.04.2024, the respondent husband came to the residence of the petitioner-wife and forcefully took away the child. The petitioner has also placed on record the complaint filed before the District Police Chief, Pathanamthitta, and the Perumpetty Police OP(FC)NO.304 OF 2024 3 Station on 10.04.2024, as evidenced by Exts.P2 and P3. It is further stated that the petitioner came to know about Ext.P5 order issued by the Family Court, through the child line and therefore the petitioner filed Ext.P6 I.A. No.5/2024 in O.P.(G&W) No.210 of 2024 for advancing the case. This is followed by Ext.P7 I.A. No.6 of 2024 in O.P.(G&W) No.210 of 2024 challenging the maintainability of the Original Petition filed by the respondent herein and Ext.P8 I.A. No.7 of 2024 seeking to set aside exparte injunction order issued by the Family Court. It is also noticed that Exts.P9 and P10 objections were filed by the respondent herein against the prayers made by the petitioner. Placing reliance on Ext.P11 case status report, the petitioner contends that the Family Court, Kattappana, though posted the I.As on various dates, has not taken any decision thereon till date. In such circumstances, this Original Petition is filed praying for the following reliefs:

"1) Direct the Family Court, Kattappana to consider and pass orders in Ext.P7 and Ext.P8 interim applications, within a time frame fixed by this Hon'ble Court, in the interest of justice;

2) Direct the Family Court, Kattappana to hand over custody of the minor Nivedya to the petitioner, till the disposal of Ext.P7 and Ext.P8 interim applications in the interest of justice;

3) Dispense with the production of English translations of Exhibits vernacular;

And

4) Such other Orders or Directions deem fit on facts and in the interest of justice."

4. On 07.05.2024, this Original Petition was admitted and the respondent was directed to produce the child on 14.05.2024. On 14.05.2024, this Court had directed the Registry to get a report from the Family Court as to why Exts.P7 and P8 interim applications were not being disposed of and also regarding the report on counselling. The petitioner was also permitted to interact with the child till 1 p.m. on 14.05.2024.

5. Today when this Original Petition is posted for further hearing, the report of the Family Court, Kattappana, is placed on record. It is seen that Exts.P7 and P8 applications were posted before the Family Court for consideration.

6. We have heard the counsel for the petitioner and the learned counsel for the respondent herein.

7. This Original Petition is with reference to Ext.P5 order issued by the Family Court. Ext.P5 has been issued by the Family Court on Ext.P4 application filed by the respondent herein. The petitioner has relied upon Ext.P1 series documents to contend that the minor OP(FC)NO.304 OF 2024 5 child was all along with her and the contention to the contrary by the respondent herein is not correct. A reference to Ext.P1 would reveal that on 20.09.2023, immunisation has been carried out at the Community Health Centre, Ezhumattoor. Ext.P1(b) O.P. ticket of the Kerala Government Ayush Department, Homeopathy Department, Pathanamthitta, shows that on various dates during the month of November, 2023, the child was with the mother at Pathanamthitta. Ext.P1(c) O.P. ticket also indicates that the child was at Pathanamthitta with her mother, the petitioner herein, even during February, 2024. It is also noticed that the petitioner had also filed a complaint to the District Police Chief dated 10.04.2024, on which, an endorsement was also made by the District Police Chief on 11.04.2024. In the light of the above documents, prima facie, we find that the child was with the petitioner-mother till the said date. It is all the more so, since, on a perusal of the report of the Family Court dated 15.05.2024, it is seen that the respondent-husband, pursuant to the filing of Exts.P7 and P8, though had obtained two adjournments for producing documents to prove that the child was with him, has not done so.

8. The child is aged only 2 years. It is a girl child.

9. Considering the entire aspects we direct the respondent OP(FC)NO.304 OF 2024 6 herein to produce the child-Nivedya-before the Family Court, Kattappana on 21.05.2024 and handover the custody to the petitioner herein. There will be a further direction to the Family Court, Kattappana, to dispose of Exts.P7 and P8 interim applications pending before it within a period of two weeks from today. Needless to say that the observations in this judgment are not to be treated as final, and the Family Court is to decide the applications on the basis of the factual and legal position. It is also clarified that, the handing over of the child to the petitioner-mother pursuant to the directions herein will not affect the merits of the claim of the respondent-husband.

The Original Petition is disposed of as above.

Sd/-

SATHISH NINAN, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE Skk//17.05.2024 OP(FC)NO.304 OF 2024 7 APPENDIX OF OP (FC) NO.304/2024 PETITIONER'S EXHIBITS:-

EXHIBIT P1 THE TRUE COPY OF THE RELEVANT PAGES OF MOTHER-CHILD HEALTH CARE CARD OF PETITIONER-WIFE AND CHILD ISSUED BY GOVERNMENT OF KERALA EXHIBIT P1(A) THE TRUE COPY OF THE OP TICKET 14584 DATED 20.09.2023 ISSUED FROM COMMUNITY HEALTH CENTRE, EZHUMATTOOR DURING THE IMMUNIZATION OF CHILD EXHIBIT P1(B) THE TRUE COPY OF THE OP TICKET VIDE REG.NO.7523 DATED 21.11.2023 ISSUED FROM DISTRICT HOMEO HOSPITAL, KOTTANAD, PATHANAMTHITTA IN NAME OF MINOR NIVEDYA EXHIBIT P1(C) THE TRUE COPY OF THE OP TICKET VIDE REG.NO.787 DATED 26.01.2024 ISSUED FROM DISTRICT HOMEO HOSPITAL, KOTTANAD, PATHANAMTHITTA IN NAME OF MINOR NIVEDYA EXHIBIT P2 THE TRUE COPY OF RECEIPT NO.15299041- 2024-5-00113 DATED 10.04.2024 ISSUED BY THE PERUMPETTY POLICE, PATHANAMTHITTA DISTRICT TO THE PETITIONER EXHIBIT P3 THE TRUE COPY OF RECEIPT NO.1237- CAMP/DPC/PTA/2024 DATED 10.04.2024 ISSUED BY THE OFFICE OF DISTRICT POLICE CHIEF, PATHANAMTHITTA DISTRICT TO THE PETITIONER EXHIBIT P3(A) THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO DISTRICT POLICE CHIEF, PATHANAMTHITTA ON 10.04.2024 EXHIBIT P4 THE TRUE COPY OF THE I.A NO.3/2024 IN O.P(G&W) NO.210/2024 ON THE FILES OF FAMILY COURT, KATTAPPANA EXHIBIT P5 THE TRUE COPY OF THE INJUNCTION ORDER DATED 09.04.2024 IN I.A NO.3/2024 IN O.P(G&W) NO.210/2024 ON THE FILES OF FAMILY COURT, KATTAPPANA EXHIBIT P6 THE TRUE COPY OF THE I.A NO. 5/2024 IN O.P(G&W) NO.210/2024 ON THE FILES OF FAMILY COURT, KATTAPPANA FILED BY THE PETITIONER ADVANCING THE HEARING AND EXPEDITIOUS CONSIDERATION OF CASE EXHIBIT P7 THE TRUE COPY OF THE I.A NO.6/2024 IN O.P(G&W) NO.210/2024 ON THE FILES OF FAMILY COURT, KATTAPPANA FILED BY THE OP(FC)NO.304 OF 2024 8 PETITIONER CHALLENGING THE MAINTAINABILITY OF O.P(G&W) NO.210/2024 BEFORE THE FAMILY COURT, KATTAPPANA EXHIBIT P8 THE TRUE COPY OF THE I.A NO.7 /2024 IN O.P(G&W) NO.210/2024 ON THE FILES OF FAMILY COURT, KATTAPPANA FILED BY THE PETITIONER SEEKING TO SET-ASIDE THE EXT.P5 EX-PARTE INJUNCTION EXHIBIT P9 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P7 I.A NO.6/2024 IN O.P(G&W) NO.210/2024 ON THE FILES OF FAMILY COURT, KATTAPPANA EXHIBIT P10 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P8 I.A NO.7 /2024 IN O.P(G&W) NO.210/2024 ON THE FILES OF FAMILY COURT, KATTAPPANA EXHIBIT P11 THE TRUE COPY OF THE CASE STATUS OF THE O.P(G&W) NO.210/2024 ON THE FILES OF FAMILY COURT, KATTAPPANA AS PER E-COURTS WEB DOMAIN