Don Paul vs Tisa Don @ Tisa Palackal Kuriakose
2021 Latest Caselaw 21244 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
             THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                       &
                THE HONOURABLE MR.JUSTICE N.NAGARESH
    THURSDAY, THE 28TH DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943
                  CON.CASE(C) NO. 845 OF 2021
AGAINST THE JUDGMENT     DATED 07.05.2019 IN OP (FC) 281/2019 OF HIGH
                       COURT OF KERALA, ERNAKULAM
PETITIONER/PETITIONER:

            DON PAUL
            AGED 38 YEARS
            S/O. LATE PAUL PAUL, THENGUMAPALLY HOUSE, MANJOOR P.O.,
            MANJOOR VILLAGE, KOTTAYAM-686603.

            BY ADVS.
            ARUN MATHEW VADAKKAN
            GERRY DOUGLES S.


ALLEGED CONTEMPTOR/RESPONDENT/RESPONDENT:

            TISA DON @ TISA PALACKAL KURIAKOSE
            AGED 32 YEARS
            D/O. GEORGE KURIAKOSE, PALACKAL HOUSE, BUS STAND ROAD,
            VAIKOM P.O., KOTTAYAM DISTRICT-686141.

            BY ADVS.
            ABRAHAM P.GEORGE
            M.SANTHY


     THIS   CONTEMPT   OF   COURT    CASE     (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 28.10.2021, ALONG WITH R.P NO.714/2021 AND THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 Cont.Case (C) No.845 of 2021
      &
R.P No.714 of 2021
                                    2



       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT
            THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                    &
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
  THURSDAY, THE 28TH DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943
                           RP NO. 714 OF 2021
AGAINST THE ORDER DATED 05.10.2021 IN CON.CASE(C) 845/2021 OF
                     HIGH COURT OF KERALA, ERNAKULAM
REVIEW PETITIONER/RESPONDENT(ALLEGED CONTEMNOR)/RESPONDENT:

             TISA PALACKAL KURIAKOSE
             AGED 33 YEARS
             D/O.GEORGE KURIAKOSE, PALACKAL HOUSE, BUS STAND
             ROAD, VAIKOM P.O., KOTTAYAM DISTRICT, PIN-686 141.

             BY ADVS.
             ABRAHAM P.GEORGE
             M.SANTHY



RESPONDENT/PETITIONER/PETITIONER:

             DON PAUL
             AGED 39 YEARS
             S/O. PAUL P., THENGUMPALLIL HOUSE, MANJOOR VILLAGE,
             KOTTAYAM DISTRICT, PIN-686 603.



             SRI.ARUN MATHEW VADAKKAN


       THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.10.2021, ALONG WITH CON.CASE(C).845/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Cont.Case (C) No.845 of 2021
      &
R.P No.714 of 2021
                                       3




       ALEXANDER THOMAS & N.NAGARESH, JJ.

========================================= Cont.Case (C) No.845 of 2021 [arising out of the judgment in O.P(FC) No.281/2019 dated 07.05.2019 which arose out of order dated 09.04.2019 in O.P(G&W) 810/2015 on the file of the Family Court, Kottayam] & R.P No.714 of 2021 [arising out of the order dated 05.10.2021 in Con.Case(C) No.845/2021 in O.P(FC) No.281/2019] ========================================= Dated this the 28th day of October, 2021

JUDGMENT / ORDER

Alexander Thomas, J.

The above contempt of court case has been filed by the petitioner

in O.P(FC) No.281/2019, alleging that the respondent in the O.P has

blatantly violated the terms and conditions of the judgment dated

07.04.2019 rendered by this Court in O.P(FC) No.281/2019.

2. Heard Sri.S.Gerry Dougles, learned counsel appearing for

the petitioner (husband) and Sri.Abraham P.George, learned counsel

appearing for the respondent (wife). The above contempt of court case

has arisen out of the judgment dated 07.04.2019 rendered by this Court

in the above O.P(FC) No.281/2019. The said O.P(FC) No.281/2019 in Cont.Case (C) No.845 of 2021 & R.P No.714 of 2021

turn has arisen out of an order dated 09.04.2019 in O.P(G&W)

No.810/2015 on the file of the Family Court, Kottayam.

3. The petitioner herein is the husband of the respondent

herein. The marital relationship between the parties have been

dissolved by the Family Court, Ettumanoor, which has been now

impugned in a Matrimonial Appeal pending before this Court. So also,

the petitioner (husband) had filed O.P(G&W) No.810/2015 before the

Family Court seeking custody of the child, which was also unsuccessful,

as the said O.P was dismissed by the Family Court. On being aggrieved

by the verdict of the Family Court in dismissing the Original Petition for

custody of the child, the petitioner had filed Matrimonial Appeal, Mat.

Appeal No.216/2019 to impugn the said judgment of the Family Court

dismissing the application for custody of the child. As a matter of fact,

while dismissing the O.P for custody, the Family Court had infact

granted liberty to the petitioner (husband) to approach the said court in

the matter of access and enjoyment of visitorial rights of the child. The

petitioner (husband) had filed interim application in the Mat. Appeal

No.216/2019 to secure the custody of the child and the Division Bench

of this Court as per interim order dated 08.03.2019 had closed the said Cont.Case (C) No.845 of 2021 & R.P No.714 of 2021

application in Mat. Appeal No.216/2019 giving liberty to the petitioner

to in turn approach the Family Court in the matter of visitorial rights. It

is in the background of this interlocutory aspects during the pendency

of the main matter in the Matrimonial Appeal, Mat.Appeal

No.216/2019, wherein the petitioner had approached the Family Court

on the basis of the liberty granted by this Court in the interim order in

the Mat. Appeal that the Family Court has passed the impugned order

dated 21.03.2019 in I.A No.587/2019 in O.P (G&W)No.810/2015, giving

certain directions in the matter of visitorial rights of the child to be

given to the husband, on alternate Sundays, as mentioned in the said

order. Both the husband and the wife challenged the said order dated

21.03.2019 in I.A No.587/2019 in O.P (G&W) No.810/2015. The

aforementioned O.P(FC) No.281/2019 was filed by the husband and

O.P(FC) No.274/2019 was filed by the wife. Both the O.P(FC)s were

heard together, which led to the common judgment dated 07.04.2019 in

those O.P(FC)s [produced as Annexure-A1 in the contempt case]. The

case of the husband in the contempt petition is that though the wife has

initially complied with the directions in Annexure-A1 judgment in the

O.P(FC), later she has deliberately violated the directions therein in the Cont.Case (C) No.845 of 2021 & R.P No.714 of 2021

matter of giving access and visitorial rights of the child. It is in this

background, the above contempt case has been filed before this Court

on 31.05.2021.

4. Now, the respondent herein (wife) had entered appearance

through her learned counsel. We have heard both sides in extenso. The

respondent (wife) has filed counter affidavit dated 18.10.2021, in which

it has been inter alia stated in para.13 thereof that, none other than the

petitioner herein (husband) in fact moved this Court by filing I.A

No.2/2021 in the abovesaid Mat. Appeal No.216/2019 [which is now the

main matter in relation to the custodial rights] and has secured an

order from this Court on 08.04.2021, wherein this Court has directed

that the petitioner (father) will have interim custody of the minor child

on first and third Saturdays of every month (10 a.m. to 4.30 p.m.) and

the respondent has been directed to hand over the child at the Family

Court, Kottayam at Ettumanoor, etc. It has to be borne in mind that the

judgment in the O.P(FC) No.281/2019 has been rendered in an

interlocutory matter in the custodial rights issues, the main matter of

which now, is Matrimonial Appeal No.216/2019. At the instance of the

petitioner (husband), he had initially secured the present Annexure-A1 Cont.Case (C) No.845 of 2021 & R.P No.714 of 2021

judgment, wherein the direction was to give visitorial rights on every

alternate Sundays. Now, subsequently at his own instance, he moved

the main matter by filing an I.A and this Court, as per the abovesaid

order dated 08.04.2021 in I.A No.2/2021 in Mat. Appeal No.216/2019

has varied the arrangement for visitorial rights and the days on which it

is to be granted, which is now first and third Saturdays. The abovesaid

crucial aspect regarding the issuance of order dated 08.04.2021 in I.A

No.2/2021 in MAT Appeal No.216/2019 and that too at the instance of

the petitioner, has not been disclosed by him in the above contempt

case filed on 31.05.2021. We fail to understand, as to why the petitioner

has chosen to suppress the said crucial aspect. If the said crucial aspect

had been disclosed to us by the petitioner, then we would have certainly

closed the contempt case and would not have issued notice in the

contempt case, for the simple reason that the very foundation of the

contempt case is Annexure-A1 judgment, has in fact has been varied at

the instance of the petitioner himself, in the main matter, as per the

interim orders passed by this Court in the matrimonial appeal, which is

relating to custody, visitorial rights, etc. Sri.Abraham P.George,

learned counsel appearing for the respondent (wife) submits that his Cont.Case (C) No.845 of 2021 & R.P No.714 of 2021

party (respondent-wife) has complied with the terms and conditions of

the subsequent order rendered by this Court on 08.04.2021 in I.A

No.2/2021 in MAT Appeal No.216/2019.

5. So, without getting into the merits of the controversy, we are

constrained to hold that, the directions in Annexure-A1 judgment, has

become rather infructous or lost its efficacy from 08.04.2021 onwards,

as the same have been varied subsequently in the main matter in the

matrimonial appeal and that too at the instance of the petitioner. So

there is no question of entertaining this contempt case. On and w.e.f

08.04.2021, the order that regulates the custodial or visitorial rights, is

the one rendered by this Court on 08.04.2021 in I.A No.2/2021 in Mat.

Appeal No.216/2019. Further the interim order dated 05.10.2021

passed by us in the COC, will stand vacated and revoked. Further it is

brought to our notice that Mat.Appeal Nos.216/2019, 206/2019 &

221/2019 are pending consideration before the Division Bench of this

Court. We would request the Division Bench concerned to consider

facilitation of the early final disposal of the main cases in Mat.Appeal

Nos.216/2019, 206/2019 & 221/2019, without much delay, if that is feasible,

in the interest of administration of justice. In the light of these aspects, the Cont.Case (C) No.845 of 2021 & R.P No.714 of 2021

above Contempt of Court Case will stand dismissed. However, there

will be no order as to costs.

R.P No.714 of 2021

Sri.Abraham P.George, learned counsel appearing for the

petitioner (wife) in the review petition submits that in view of the

judgment separately rendered by this Court today [28.10.2021] in COC

No.845/2021, this Review Petition has become infructuous, as the same

arises out of an interim order passed by this Court in the above

contempt case and more particularly, because of the dismissal of the

above contempt case as per the abovesaid judgment rendered by this

Court today.

Accordingly, the above Review Petition will stand dismissed as

withdrawn.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

N.NAGARESH, JUDGE

vgd Cont.Case (C) No.845 of 2021 & R.P No.714 of 2021

APPENDIX OF CON.CASE(C) 845/2021

PETITIONER'S ANNEXURES

ANNEXURE A1 CERTIFIED COPY OF ORDER OF THIS COURT DATED 7.5.2019 IN OP(FC) NO.281/2019.

ANNEXURE A2 TRUE COPY OF ORDER DATED 19.1.2021 IN WP(C) NO.9721/2020 OF THIS COURT.

ANNEXURE A3                TRUE COPY OF ORDER DATED 27.3.2021   BY
                           REGISTRAR   OF   BIRTHS  & DEATHS    AT
                           ETTUMANOOR MUNICIPALITY.