Sulfikkar K. V vs Nijina
2023 Latest Caselaw 857 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
           THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 TUESDAY, THE 17TH DAY OF JANUARY 2023/27TH POUSHA, 1944
                    OP (FC) NO. 23 OF 2023
AGAINST THE ORDER DATED 23.12.2022 IN I.A.NO.7 OF 2022 IN
    GOP NO.1249 OF 2021 OF THE FAMILY COURT, THRISSUR
PETITIONERS/RESPONDENTS:

    1      SULFIKKAR K. V, AGED 36 YEARS, S/O SUBAIR,
           KODUNGUKKARAN HOUSE, CHENTHRAPPINNY VILLAGE,
           KODUNGALLUR TALUK, THRISSUR DISTRICT - 680687

    2      SULTHAN SAMEEN, AGED 6 YEARS, S/O SULFIKKAR.
           K.V, KODUNGUKKARAN HOUSE, CHENTHRAPPINNY
           VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT -
           680 687, REPRESENTED BY 1ST PETITIONER

           BY ADVS.P.T.MARY
           R.S.REJITHA
           BENRAJ K.R.
           ACHUTHAN K.
           NANDA SURENDRAN


RESPONDENT/PETITIONER:

           NIJINA, AGED 29 YEARS, D/O ASHIK, AMBALATH
           HOUSE, PERMANNU DESAM, ERANELLUR VILLAGE,
           KUNNAMKULAM TALUK, THRISSUR DISTRICT - 680501

            BY ADV MAHESH V MENON


        THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                   -2-
O.P.(FC)No.23 of 2023



                             JUDGMENT

Anil K. Narendran, J.

The 1st petitioner is the respondent in O.P.No.1249 of

2021 on the file of the Family Court, Thrissur, which is one

filed by the respondent herein seeking permanent custody of

the minor child by name Sulthan Sameen, presently aged 6

years. In that original petition, the respondent filed I.A.No.2

of 2021 seeking interim custody of the minor child. After

considering the rival contentions, the Family Court passed

Ext.P5 order dated 18.11.2021, whereby that interlocutory

application was allowed. Paragraph 5 of the said order reads

thus;

"5. The minor was produced before me and I had opportunity to interact with the child in the presence of both parties. At the time of production it was submitted that the petitioner is seeing the minor after a long period of 1 ½ years. The minor expressed only a formal acquaintance with the petitioner. A strong emotional bonding is visibly absent in the conduct of the minor. Admittedly the child is residing with the respondent for the last few years. Considering the terms and conditions in the mubara'at I am of the view that the existing living environment of the minor need not be altered as the same may upset the emotional temperament of the child. But it is equally

O.P.(FC)No.23 of 2023

important that the minor shall have sufficient opportunity to interact with the petitioner who is none other than his mother. Therefore, I am inclined to allow the petitioner to have interim custody of the child from 10 am on every 2nd Saturday till 5 pm on the following Sunday and also during the first half of Onam, Christmas and summer vacations.

2. Alleging violation of Ext.P5 order granting interim

custody, the respondent filed I.A.No.7 of 2022 (Ext.P8), in

which the Family Court passed Ext.P9 order dated

23.12.2022, whereby the 1st petitioner is directed to handover

custody of the minor child by 10.00 a.m. on 24.12.2022, in

compliance of the order in I.A.No.2 of 2022, and listed the

matter on 30.12.2022, for reporting compliance. Challenging

Ext.P9 order dated 23.12.2022, the petitioners are before this

Court in this original petition, invoking the supervisory

jurisdiction of this Court under Article 227 of the Constitution

of India.

3. On 13.01.2023, when this original petition came up

for consideration as un-numbered, this Court noticed that due

to a typographical mistake committed by the Family Court,

Thrissur, the date of Ext.P9 is wrongly shown as 04.03.2022 in

the cause title of that order. The correct date is shown on the

O.P.(FC)No.23 of 2023

bottom portion. In such circumstances, by the order dated

13.01.2023, this Court directed the Registry to number this

original petition and list for admission on 16.01.2023 at 10.15

a.m. By the said order, the petitioner was directed to file an

application to obtain corrected copy of Ext.P9 order of the

Family Court, Thrissur on 16.01.2023 and the said Court was

directed to issue corrected copy of Ext.P9 on that day itself.

4. On 16.01.2023, when this matter came up for

consideration, the respondent entered appearance through

counsel.

5. Heard the learned counsel for the petitioners and

also the learned counsel for the respondent.

6. The learned counsel for the petitioners would

submit that in terms of the order of this Court dated

13.01.2023, the 1st petitioner has already made an application

for corrected copy of Ext.P9 order.

7. The learned counsel for the respondent would point

out that despite granting repeated opportunities, the 1st

petitioner has not chosen to comply with the direction

contained in Ext.P5 order dated 18.11.2022 in I.A.No.2 of

2021 in G.O.P.No.1249 of 2021 and it was in such

O.P.(FC)No.23 of 2023

circumstances that the Family Court has issued Ext.P9 order

dated 23.12.2022 in I.A.No.7 of 2022. That interlocutory

application is even now pending consideration before the

Family Court.

8. Article 227 of the Constitution of India deals with

power of superintendence over all courts by the High Court.

Under clause (1) of Article 227 of the Constitution, every High

Court shall have superintendence over all courts and tribunals

throughout the territories in relation to which it exercises

jurisdiction.

9. In Shalini Shyam Shetty v. Rajendra Shankar

Patil [(2010) 8 SCC 329] the Apex Court, while analysing

the scope and ambit of the power of superintendence under

Article 227 of the Constitution, held that the object of

superintendence, both administrative and judicial, is to

maintain efficiency, smooth and orderly functioning of the

entire machinery of justice in such a way as it does not bring

it into any disrepute. The power of interference under Article

227 is to be kept to the minimum to ensure that the wheel of

justice does not come to a halt and the fountain of justice

remains pure and unpolluted in order to maintain public

O.P.(FC)No.23 of 2023

confidence in the functioning of the tribunals and courts

subordinate to the High Court.

10. In Jai Singh v. Municipal Corporation of Delhi

[(2010) 9 SCC 385], while considering the nature and scope

of the powers under Article 227 of the Constitution of India,

the Apex Court held that, undoubtedly the High Court, under

Article 227 of the Constitution, has the jurisdiction to ensure

that all subordinate courts, as well as statutory or quasi-

judicial tribunals exercise the powers vested in them, within

the bounds of their authority. The High Court has the power

and the jurisdiction to ensure that they act in accordance with

the well established principles of law. The exercise of

jurisdiction must be within the well recognised constraints. It

cannot be exercised like a 'bull in a china shop', to correct all

errors of the judgment of a court or tribunal, acting within the

limits of its jurisdiction. This correctional jurisdiction can be

exercised in cases where orders have been passed in grave

dereliction of duty or in flagrant abuse of fundamental

principles of law or justice.

11. In K.V.S. Ram v. Bangalore Metropolitan

Transport Corporation [(2015) 12 SCC 39] the Apex

O.P.(FC)No.23 of 2023

Court held that, in exercise of the power of superintendence

under Article 227 of the Constitution of India, the High Court

can interfere with the order of the court or tribunal only when

there has been a patent perversity in the orders of the

tribunal and courts subordinate to it or where there has been

gross and manifest failure of justice or the basic principles of

natural justice have been flouted.

12. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016

(1) KHC 1] a Division Bench of this Court held that, the law

is well settled by a catena of decisions of the Apex Court that

in proceedings under Article 227 of the Constitution of India,

this Court cannot sit in appeal over the findings recorded by

the lower court or tribunal and the jurisdiction of this Court is

only supervisory in nature and not that of an appellate court.

Therefore, no interference under Article 227 of the

Constitution is called for, unless this Court finds that the lower

court or tribunal has committed manifest error, or the

reasoning is palpably perverse or patently unreasonable, or

the decision of the lower court or tribunal is in direct conflict

with settled principles of law.

13. In view of the law laid down in the decisions

O.P.(FC)No.23 of 2023

referred to supra, the High Court in exercise of its supervisory

jurisdiction under Article 227 of the Constitution of India

cannot sit in appeal over the findings recorded by a lower

court or tribunal. The supervisory jurisdiction cannot be

exercised to correct all errors of the order or judgment of a

lower court or tribunal, acting within the limits of its

jurisdiction. The correctional jurisdiction under Article 227 can

be exercised only in a case where the order or judgment of a

lower court or tribunal has been passed in grave dereliction of

duty or in flagrant abuse of fundamental principles of law or

justice. Therefore, no interference under Article 227 is called

for, unless the High Court finds that the lower court or tribunal

has committed manifest error, or the reasoning is palpably

perverse or patently unreasonable, or the decision of the

lower court or tribunal is in direct conflict with settled

principles of law or where there has been gross and manifest

failure of justice or the basic principles of natural justice have

been flouted.

14. After arguing for some time, the learned counsel

for the petitioners would submit that the 1st petitioner shall

produce the minor child before the Family Court, Thrissur on

O.P.(FC)No.23 of 2023

20.01.2023.

Having considered the materials on record and also the

submissions made by the learned counsel on both sides, we

deem it appropriate to dispose of this original petition without

interfering with Ext.P9 order, by recording the submission

made by the learned counsel for the petitioners that the 1st

petitioner shall produce the minor child before the Family

Court on 20.01.2023. On production of the minor child, the

Family Court shall take an appropriate decision as to the

further course to be taken in the matter, by passing

appropriate orders in I.A.No.7 of 2022 in O.P.No.1249 of

2021, after interacting with the minor child.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE

AV/17/1

O.P.(FC)No.23 of 2023

APPENDIX OF OP (FC) 23/2023

PETITIONER EXHIBITS

ExhibitPP1 TRUE COPY OF THE MUBARATH AGREEMENT SIGNED BETWEEN THE 1ST PETITIONER AND THE RESPONDENT DATED 7/1/2021

Exhibit P2 TRUE COPY OF THE GUARDIAN O.P, 1249/2021 FILED BY THE RESPONDENT BEFORE THE HONOURABLE FAMILY COURT THRISSUR DATED 12/7/2021

ExhibitP3 TRUE COPY OF THE INTERIM CUSTODY PETITION I.A. 02/2021 IN O.P.

1249/2021 FILED BY THE RESPONDENT BEFORE THE HONOURABLE FAMILY COURT, THRISSUR.

Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. 02/2021 IN O.P.1249/2021 FILED BY THE 1ST PETITIONER BEFORE THE HONOURABLE FAMILY COURT, THRISSUR.

ExhibitP5 TRUE COPY OF THE COMMON ORDER PASSED BY THE HONOURABLE FAMILY COURT THRISSUR IN I.A. 02/2021 IN O.P 1249/2021.DATED 18/11/21

Exhibit P6 TRUE COPY OF I.A. 11/2022 FILED BY THE RESPONDENT FOR THE VIOLATION OF I.A.02/2021 IN O.P 1249/2021 DATED 21/9/2021.

Exhibit P7 TRUE COPY OF THE OBJECTION IN INTERIM CUSTODY PETITION I.A. 11/2022 IN O.P.

1249/2021 FILED BY THE PETITIONERS/RESPONDENTS BEFORE THE HONOURABLE FAMILY COURT, THRISSUR.

DATED 26/9/2022

O.P.(FC)No.23 of 2023

ExhibiP8 TRUE COPY OF THE INTERIM CUSTODY PETITION I.A. 07/2022 IN O.P.

1249/2021 FILED BY THE RESPONDENT BEFORE THE HONOURABLE FAMILY COURT, THRISSUR.DATED 26/9/2022

Exhibit9 TRUE COPY OF THE ORDER DATED 23/12/2022 IN I.A. 07/2022 COMPLIANCE WITH THE ORDER IN I.A. 02/2021 IN O.P. 1249/2021.