Sathyavathi vs Suresh T
2023 Latest Caselaw 4533 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                              &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
                 O.P.(FC) NO. 186 OF 2023
  SPEEDY DISPOSAL OF R.P.NO.29 OF 2023 IN O.P.NO.432 OF
2020 AND TO KEEP THE PROCEEDINGS IN E.P.NO.34 OF 2022 IN
IN ABEYANCE ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT
                          ETTUMANOOR
PETITIONERS:

    1     SATHYAVATHI
          AGED 54 YEARS, W/O VISWAMBHARAN, MANALIL H,
          PULIKKATTUSSERY P.O, KOTTAYAM DISTRICT, PIN -
          686015.
    2     VISWAMBHARAN,
          AGED 62 YEARS, S/O KARUTHAKUTTY, MANALIL H,
          PULIKKATTUSSERY P.O, KOTTAYAM DISTRICT, PIN -
          686015.
          BY ADVS.
          JOMY GEORGE
          R.PADMARAJ
          RISHAB S.
          RIJO DOMY
          CHITRA N. DAS
          RONA ANN SIBY

RESPONDENTS:

    1     SURESH T.,
          AGED 38 YEARS, S/O THANKAPPAN, SARASWATHY
          NIVAS, CHERUVARANAM, VARANAM P.O, CHERTHALA,
          ALAPPUZHA, PIN - 688555.
                                2
O.P.(FC) No.186 of 2023


     2       ATHIRA,
             AGED 33 YEARS, W/O SURESH, MANALIL H,
             PULIKKATTUSSERY P.O, KOTTAYAM DISTRICT,
             PIN - 686015.

         THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                 3
O.P.(FC) No.186 of 2023


                          JUDGMENT

P.G. Ajithkumar, J.

The respondents No.2 and 3 in O.P.No.432 of 2020 on

the file of the Family Court, Kottayam at Ettumanoor are the

petitioners. They have filed this Original Petition under Article

227 of the Constitution of India seeking a direction to get

Ext.P5 petition pending before the Family Court disposed of at

an early date and till then keep the proceedings in Ext.P3

execution petition in abeyance.

2. Today (12.04.2023), when this matter came up for

admission, we heard the learned counsel in detail. Considering

the nature of relief proposed to be granted, service of notice

on the respondents is dispensed with.

3. The 1st respondent is the husband of the 2nd

respondent. They have two children, Parvathi Suresh, aged 12

years and Pranav Suresh, aged 9 years. The 1 st respondent

filed O.P.No.432 of 2020 for getting permanent custody of the

children. The 2nd respondent and the petitioners herein are the

respondents. The petitioners are the parents of the 2 nd

O.P.(FC) No.186 of 2023

respondent. They did not choose to appear and contest

O.P.No.432 of 2020. Therefore, the said original petition was

decreed exparte and the 1st respondent was allowed to have

permanent custody of the children. He has filed E.P.No.34 of

2022 for enforcing of the said decree. It was thereafter the

petitioners filed R.P.No.29 of 2023 invoking the provisions of

Order IX, Rule 13 of the Code of Civil Procedure, 1908 to set

aside the judgment and decree dated 04.02.2023. Ext.P5 is a

copy of the said application. The petitioners filed I.A.No.2 of

2023 in R.P.No.29 of 2023 seeking to advance hearing of the

said R.P. and take a decision, after serving notice on the

respondent, through special messenger. The grievance of the

petitioners is that pending consideration of those interlocutory

applications, the Family Court has been proceeding with

E.P.No.34 of 2022. In such circumstances, the petitioners seek

a direction to the Family Court to dispose of R.P.No.29 of 2023

within a time fixed by this Court.

4. On going through Ext.P2, the judgment in

O.P.No.432 of 2022, it is seen that the petitioners or the 2 nd

O.P.(FC) No.186 of 2023

respondent did not appear before the Family Court. The

petitioners would contend that the 2nd respondent was abroad

and there was sufficient reason for their non-appearance in

O.P.No.432 of 2020. Considering the nature of contentions

raised by the petitioners, we are of the view that an early

decision in R.P.No.29 of 2023 is warranted. In the meanwhile,

it is only appropriate not to proceed with E.P.No.34 of 2022.

5. In such circumstances, we dispose of this Original

Petition by directing the Family Court, Kottayam at

Ettumanoor to dispose of R.P.No.29 of 2023 within a period of

one month from the date of production of a certified copy of

this judgment and to keep the proceedings in E.P.No.34 of

2022 in abeyance till the disposal of the R.P.No.29 of 2023.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

O.P.(FC) No.186 of 2023

APPENDIX OF OP (FC) 186/2023

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION NUMBERED AS O.P 432/2022 DATED 15.06.2020, FILED BY THE RESPONDENT BEFORE THE HONBLE FAMILY COURT, KOTTAYAM AT ETTUMANOOR

EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 04.02.2022 IN O.P 432/2020 BEFORE THE HONBLE FAMILY COURT, KOTTAYAM AT ETTUMANOOR, ALONG WITH ITS TYPED COPY

EXHIBIT P3 A TRUE COPY OF E.P NO. 34/2022 DATED 31.08.2022 FILED BY THE 1ST RESPONDENT

EXHIBIT P4 A TRUE COPY OF E.A 4/2022 IN E.P 34/2022 DATED 31.01.2023

EXHIBIT P5 TRUE COPY OF PETITION DATED 29.03.2023 FILED BY THE PETITIONERS NUMBERED AS R.P. 29/2023 IN O.P 432/2020

EXHIBIT P6 TRUE COPY OF OBJECTION DATED 29.03.2023 FILED BY THE PETITIONERS IN E.A 4/2022 IN EP 34/2022

EXHIBIT P7 A TRUE COPY OF MEDICAL CERTIFICATE DATED 17.03.2023 ISSUED BY DR. REKHA P, SPECILIST IN ASTHMA, ALLERGY AND CHEST DISEASES

EXHIBIT P8 A TRUE COPY OF CERTIFICATES IN THE NAME OF MINOR CHILDREN BOTH DATED 17.03.2022 ISSUED BY THE PRINCIPAL OF ST. ALPHONSA PUBLIC SCHOOL, KUDAMALLOOR

EXHIBIT P9 TRUE COPY OF THE PETITION DATED 31-03-2023 FILED BY THE PETITIONER AS I.A 2/2023 IN THE REVIEW PETITION