Kerala High Court
Joby Stephen @ Joseph vs Gladis Joseph @ Anna on 3 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 3rd day of February 2023 / 14th Magha, 1944
IA.NO.1/2023 IN MAT.APPEAL NO. 450 OF 2020
OP 359/2015 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR
PETITIONER/APPELLANT:
JOBY STEPHEN @ JOSEPH, AGED 50 YEARS, S/O.LATE STEPHEN, VELLACHALIL
HOUSE, MARIKA P.O., KOOTHATTUKULAM VIA, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT 686 662.
RESPONDENT/RESPONDENT:
GLADIS JOSEPH @ ANNA, AGED 47 YEARS, D/O. JOSEPH, EDAYADIYIL HOUSE,
VELLOORE P.O., VELLOORE VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT 686
609.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to issue necessary
direction to the Respondent to provide the interim custody of the
children while they are in Kerala for vacation, from England to have
company and fellowship of them, by producing the children before Counselor
of the Family Court, Muvattupuzha for the ends of justice.
This Application coming on for orders, upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of M/S.JOHN JOSEPH(ROY) and SABIR N.S. Advocates for the applicant, and of
MR.R.PARTHASARATHY, Advocate for the respondent, the court passed the
following:
P.T.O.
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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Mat. Appeal No.450 of 2020
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Dated this the 3rd day of February, 2023
ORDER
Anil K. Narendran, J.
I.A.No.1 of 2023
The appellant is the respondent-husband in O.P.No.359 of
2015 on the file of the Family Court, Kottayam at Ettumanoor,
which is one filed by the respondent herein-wife, claiming
return of patrimony and ornaments from the appellant. On
receipt of notice in O.P.No.359 of 2015, the appellant filed a
counter claim to recover an amount of Rs.94,59,840/- from the
respondent herein-wife. O.P.No.359 of 2015 was tried along
with O.P.No.472 of 2015, which as one filed by the appellant-
husband to declare him as the guardian of two minor children,
namely, Gloria and Olivia and to handover their permanent
custody to him. By the judgment and decree dated 29.06.2020,
O.P.No.395 of 2015 was allowed in part and O.P.No.472 of 2015
was dismissed. The operative portion of that judgment reads
thus;
"O.P.No.359 of 2015: O.P. is allowed in part as follows:-
(a) It is hereby declared that the petitioner/wife is
Mat.Appeal No.450 of 2020
declared to be having exclusive right and title over
Ext.A3/B7 extent as item No.1 of the petition schedule
property.
(b) The respondent/husband is directed to return
Rs.30,34,964/-(Thirty lakhs thirty four thousand nine
hundred and sixty four rupees only) with interest at the
rate of 9% (Rs.20,00,000 + 10,34,964) to the petitioner
within one month from today and in default, that amount
will carry interest @ 9% from the date of decree till
realisation.
(c) Property as item No.2 in the petition/schedule,
shall have a charge on the aforesaid amount to be paid
to the petitioner by husband/respondent.
(d) The counter claim by the husband/respondent
stands dismissed.
(e) Parties to suffer costs.
O.P.No.472 of 2015:
(a) The petition as O.P.No.472 of 2015 is dismissed.
(b) No order as to costs."
2. Feeling aggrieved by the judgment and decree dated
29.06.2020 in O.P.No.359 of 2015, the appellant has filed this
appeal, invoking the provisions under Section 19(1) of the
Family Courts Act, 1984. In the absence of a challenge, the
judgment and decree of the Family Court in O.P.No.472 of 2015
has attained finality.
3. On 11.08.2020, when this appeal came up for
admission, this Court issued notice by speed post to the
respondent. In I.A.No.1 of 2020, this Court granted an interim
Mat.Appeal No.450 of 2020
order on 06.10.2020, whereby the parties are directed to
maintain status quo as on that date, in all aspects for a period
of eight weeks. On 29.03.2021, this Court passed a detailed
order in this appeal, which reads thus;
"In this appeal, the main challenge is regarding the decree
amount granted at Rs.30,34,964/-, out of which
Rs.10,00,000/- has been paid. It is admitted by the
respondent in the appeal memorandum itself that the
appellant is willing to pay Rs.19,46,314/-, if sufficient
time is given.
Having considered the facts and circumstances, we are of
the view that a stay can be granted on the following
conditions:
The appellant is directed to pay Rs.9,46,314/-, the
balance portion of the admitted amount within two
months. For the disputed amount, the appellant shall
furnish security to the satisfaction of the Family Court
within the above period. In regard to the relief granted as
(a) in O.P.No.359/2015, status quo shall be maintained by
the parties."
4. The appellant has filed the above interlocutory
application, i.e., I.A.No.1 of 2023, seeking an order directing
the respondent to provide him interim custody of the minor
children, while they are in Kerala for vacation from England to
have their company and fellowship, by producing them before
Counsellor of the Family Court, Muvattupuzha.
5. On 09.01.2023, when the above interlocutory
Mat.Appeal No.450 of 2020
application came up for consideration, the learned counsel for
the respondent sought time to file counter affidavit.
6. We heard the learned counsel for the applicant/
appellant and also the learned counsel for the respondent.
7. The learned counsel for the respondent would
contend that the judgment and decree of the Family Court in
O.P.No.472 of 2015, which was one filed by the appellant-
husband to declare him as the guardian of the two minor
children and to handover their permanent custody to him, has
attained finality in the absence of any challenge made in an
appeal filed under Section 19(1) of the Family Courts Act. In
such circumstances, the appellant cannot maintain an
interlocutory application in this appeal seeking interim custody
of the minor children, which is one arising out of the decree
passed by the Family Court in O.P.No.395 of 2015 for return of
patrimony and ornaments.
8. On the other hand, the learned counsel for the
applicant/appellant would contend that even in the absence of
an appeal against the judgment and decree of the Family
Court in O.P.No.472 of 2015, the appellant can maintain such
an interlocutory application in this appeal filed against the
judgment and decree of the Family Court in O.P.No.472 of 2015.
Mat.Appeal No.450 of 2020
9. Having considered the submissions made by the
learned counsel on both sides, we find that, in the absence of
any challenge under Section 19(1) of the Family Courts Act, the
judgment and decree of the Family Court in O.P.No.472 of 2015
has attained finality. The present interlocutory application,
which is one filed by the applicant/appellant seeking interim
custody of the minor children, cannot be entertained in this
appeal, which is one arising out of the decree passed by the
Family Court in O.P.No.395 of 2015, for return of patrimony and
ornaments.
10. In the result, this interlocutory application fails for
the aforesaid reason and the same is accordingly dismissed.
Mat. Appeal No.450 of 2020
Call for L.C.R. Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
03-02-2023 /True Copy/ Assistant Registrar
