Meena Cherian vs Reji M. Eason
2023 Latest Caselaw 2677 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 1ST DAY OF MARCH 2023 / 10TH PHALGUNA,
                            1944
                  O.P.(FC)NO.723 OF 2022
 AGAINST THE ORDER/JUDGMENT DATED 28.03.2022 IN I.A.NO.11 OF
 2021 IN O.P.(GW) NO.418 OF 2021 OF THE FAMILY COURT, KOLLAM
PETITIONER/PETITIONER:


         MEENA CHERIAN, AGED 52 YEARS
         D/O. J.CHERIYAN MANAPOYKAYIL VEEDU,
         PADAPPAKKARA PERAYAM, MULAVANA VILLAGE, KOLLAM,
         PIN - 691503
         BY ADVS.
         JOHNSON GOMEZ
         S.BIJU (KIZHAKKANELA)
         SANJAY JOHNSON
         JOHN GOMEZ
         ARUN JOHNY


RESPONDENTS/RESPONDENTS:


    1    REJI M. EASON, AGED 55 YEARS,
         S/O A.E EASO MARUTHOOR HOUSE, KUMBAZHA P.O.
         PATHANAMTHITTA TALUK, PATHANAMTHITTA PIN
         689653. NOW RESIDING AT 42, SILENT CIRCLE
         DRIVE, SUGAR LAND, TEXAS STATE, U.S.A ZIP CODE
         77498 REPRESENTED BY HIS POWER OF ATTORNEY
         HOLDER MR. E.I.JOSEPH,S/O G.IDICHERIA RESIDING
         AT EDATHARAYIL HOUSE KUMBAZHA P.O
         PATHANAMTHITTA, PIN - 689653

    2    GEETHA CHERIYAN, AGED 49 YEARS,
         D.O. STELLAMA SANGEETHAM, NAMBARATHUMUKKU,
         THRIKKADAVOOR VILLAGE, KOLLAM TALUK,
         PIN - 691601
 OP(FC) No.723 of 2022
                                      2

              R1 BY ADV.AJIT JOY,
              R2 BY ADV.SAJU J PANICKER
       THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
01.03.2023,        THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 OP(FC) No.723 of 2022
                                          3

                             JUDGMENT

Anil K.Narendran, J.

The petitioner, who filed O.P.(GW) No.418 of 2021 before

the Family Court, Kollam, seeking permanent custody of the

minor child, is before this Court in this original petition invoking

the supervisory jurisdiction of this Court under Article 227 of the

Constitution of India, seeking an order to set aside Ext.P9 order

dated 28.03.2022 of the Family Court in I.A.No.11 of 2021 in

O.P.(GW) No.418 of 2021 and to allow the said interlocutory

application, i.e., Ext.P7 interlocutory application, which was one

filed seeking an order directing the respondents herein to

produce the minor child before the court, in order to ascertain

her present physical condition and mental status through a

board consisting of a team of competent doctors. The petitioner

has also sought for an order directing the Family Court, Kollam

to consider Exts.P11 and P13 interlocutory applications within a

time frame to be fixed by this Court. The petitioner filed Ext.P11

interlocutory application, i.e., I.A.No.18 of 2022, seeking

interim relief similar to that sought for in I.A.No.11 of 2021 and

Ext.P13 interlocutory application, i.e., I.A.No.19 of 2022,

seeking an order directing the service provider of the mobile

number of the minor ward to provide a certificate before the OP(FC) No.723 of 2022

Family Court revealing the exact location of the mobile phone on

07.03.2022, the date on which the Family Court interacted with

the minor child over the mobile phone. The 1 st respondent filed

Ext.P8 objections to Ext.P7 interlocutory application. Pursuant to

the direction contained in the judgment of this Court dated

03.03.2022 in Mat.Appeal No.126 of 2022, the Family Court

interacted with the child through online mode, on 07.03.2022, to

ascertain her wish. After considering the rival contentions, the

Family Court rejected Ext.P7 interlocutory application, i.e.,

I.A.No.11 of 2021 in O.P.(GW) No.418 of 2021 by Ext.P9 order

dated 28.03.2022. Feeling aggrieved, the petitioner-mother is

before this Court in this original petition, invoking the

supervisory jurisdiction of this Court under Article 227 of the

Constitution of India.

4. On 27.12.2022, when this original petition came up

for admission, this Court admitted the matter on file and issued

notice to the respondents by speed post.

5. Heard the learned counsel for the petitioner, the

learned counsel for the 1st respondent and the learned counsel

for the 2nd respondent.

6. The issue that arises for consideration in this original

petition is as to whether any interference is required on Ext.P9 OP(FC) No.723 of 2022

order dated 28.03.2022 of the Family Court, Kollam, whereby

Ext.P7 interlocutory application, i.e., I.A.No.11 of 2021 in O.P.

(GW) No.418 of 2021, stands rejected for the reason stated

therein.

7. The learned counsel for the petitioner-mother would

contend that Ext.P9 order of the Family Court, Kollam is per se

arbitrary and illegal, which warrants interference in this original

petition. Per contra, the learned counsel for the 1 st respondent

would contend that the Family Court rightly rejected Ext.P7

interlocutory application, stating valid reasons in Ext.P9 order,

which requires no interference in this original petition.

8. The petitioner-mother filed Ext.P7 interlocutory

application seeking an order directing the respondents to

produce the minor child aged 17 years before the Family Court,

in order to ascertain her present physical condition and mental

status through a board consisting of a team of competent

doctors. The 1st respondent-father opposed the relief sought for

in Ext.P7 interlocutory application by filing Ext.P8 objections.

The Family Court interacted with the child through online mode,

on 07.03.2022, to ascertain her wish, pursuant to the direction

contained in the judgment of this Court dated 03.03.2022 in

Mat.Appeal No.126 of 2022. In Ext.P9 order dated 28.03.2022 OP(FC) No.723 of 2022

in I.A.No.11 of 2021 in O.P.(GW) No.418 of 2021, the Family

Court found that the minor child is safe in USA along with her

father and her sister. She is doing her education there

peacefully. The Family Court considered various aspects in detail

in paragraph 12 of Ext.P9 order, in order to arrive at a

conclusion that, bringing the minor child to India will affect her

safety and security and her interim custody cannot be given to

the petitioner-mother. Though the Family Court dismissed Ext.P7

interlocutory application, the petitioner-mother is permitted to

continue to chat with the minor child for 10 minutes every day,

at the convenience of the minor, subject to the condition

stipulated in paragraph 14 of Ext.P9 order. The reasoning of the

Family Court in Ext.P9 order for rejecting Ext.P7 interlocutory

application filed by the petitioner-mother is neither perverse nor

patently illegal and it cannot also be said that while passing such

an order, the Family Court has committed any material

irregularity.

9. 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 OP(FC) No.723 of 2022

jurisdiction.

10. 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 confidence in the functioning of the

tribunals and courts subordinate to the High Court.

11. 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 OP(FC) No.723 of 2022

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.

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

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

13. 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 OP(FC) No.723 of 2022

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.

14. In view of the law laid down in the decisions 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 OP(FC) No.723 of 2022

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.

15. Viewed in the light of the law laid down in the

decisions referred to supra, in exercise of the supervisory

jurisdiction under Article 227 of the Constitution of India, this

Court is not sitting in appeal over Ext.P9 decision taken by the

Family Court in Ext.P7 interlocutory application. As already

noticed, the reasoning of the Family Court in Ext.P9 order for

rejecting Ext.P7 interlocutory application filed by the petitioner-

mother is neither perverse nor patently illegal and it cannot also

be said that while passing such an order, the Family Court has

committed any material irregularity, warranting interference of

this Court, in exercise of the supervisory jurisdiction under

Article 227 of the Constitution of India.

In the result, this original petition fails and the same is

accordingly dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE jg OP(FC) No.723 of 2022

APPENDIX OF OP (FC) 723/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE O.P(G&W) NO. 418/ 2021 FILED BY THE PETITIONER BEFORE THE HON'BLE FAMILY COURT KOLLAM Exhibit P2 A TRUE COPY ORDER NO. CWC/KLM/7815/21 DATED 23/02/2021 PASSED BY THE CHILD WELFARE COMMITTEE KOLLAM Exhibit P3 A TRUE COPY OF THE ORDER NO.

CWC/KLM/7815/21 DATED 12/07/2021 PASSED BY CHILD WELFARE COMMITTEE KOLLAM Exhibit P4 A TRUE COPY OF THE OBJECTION DATED

TO EXT P1 ORIGINAL PETITION Exhibit P5 A TRUE COPY OF THE ORDER DATED 10/12/2021 IN IA NO 14/2021 IN OP(G&W) NO. 418/2021 Exhibit P6 A TRUE COPY OF THE JUDGEMENT DATED 3/3/2022 IN MAT APPEAL NO. 126/2022 BEFORE THIS HON'BLE COURT Exhibit P7 A TRUE COPY OF I.A NO. 11/2021 IN O.P (G&W) 418/2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT KOLLAM Exhibit P8 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT NO.1 TO I.A NO. 11/2021 IN O.P (G&W) NO.418/2021, BEFORE THE FAMILY COURT KOLLAM Exhibit P9 CERTIFIED COPY OF ORDER DATED 28.03.2022 IN I.A.NO.11 OF 2021 IN O.P.(GW) NO.418 OF 2021 OF THE FAMILY COURT, KOLLAM Exhibit P10 A TRUE COPY OF THE IA NO. 13 OF 2021 IN O.P (G&W) 418/2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT KOLLAM Exhibit P11 A TRUE COPY OF I.A NO.18 /22 IN O.P (G&W) NO.418/2021 FILED BY THE PETITIONER Exhibit P12 A TRUE COPY OF OBJECTION IN I.A NO.18/2022 FILED BY THE RESPONDENT Exhibit P13 A TRUE COPY OF THE I.A NO.19/2022 IN O.P (G&W) NO. 418/2021 FILED BY THE PETITIONER BEFORE THE HON'BLE FAMILY COURT KOLLAM Exhibit P14 A TRUE COPY OF THE OBJECTION TO I.A NO.19/22 IN O.P (G&W) NO. 418/2021 FILED BY THE RESPONDENT OP(FC) No.723 of 2022

Exhibit P15 A TRUE COPY OF THE I.A NO.12/2021 IN O.P (G&W) NO.418/2021 FOR AMENDING THE ORIGINAL PETITION FILED BY THE PETITIONER Exhibit P16 A TRUE COPY OF THE AMENDED PETITION IN O.P (G&W) NO. 418 OF 2021 BEFORE THE FAMILY COURT KOLLAM