Kerala High Court
Dr.V.V.Aswathy vs Dr.G Bhagavathi Sankar on 24 May, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
OP (FC) NO. 144 OF 2023
AGAINST THE ORDER IN I.A NO.1/2022 IN OP 265/2013 OF
FAMILY COURT, NEDUMANGAD
PETITIONER:
DR.V.V.ASWATHY, AGED 41 YEARS, D/O
P.VISWAMBHARAN CHETTIYAR, ELANJIKKAL HOUSE,
T.C.10/608, PEROORKADA, NOW RESIDING AT I B SUN
NEELAKANTA, GSN-7A, GANDHI SMARAKA NAGAR, TK
DIVAKARAN ROAD, MUTTADA P.O. THIRUVANANTHAPURAM,
PIN - 695 025
BY ADVS.
VARGHESE C.KURIAKOSE
ALBIN A. JOSEPH
SUSANTH SHAJI
TINCY MARIA SCARIA
AMRITHA.J
RESPONDENT:
DR.G BHAGAVATHI SANKAR, AGED 46 YEARS, S/O
GANESHAN, RESIDING AT 6/42, 12TH CROSS ROAD
STREET, CARMEL MOUNT ROAD, PONNAPPA NAGAR
COLONY, NAGERCOIL, NOW RESIDING AT 8D/2,
CHIDAMBARANATHAM STREET, R.V.PURAM, NAGARCOIL-
1., PIN - 629 001
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (FC) NO. 144 OF 2023
..2..
J U D G M E N T
A. Muhamed Mustaque, J.
This original petition was filed by the
mother of the minor child Adeep B.A. On
29.06.2013, the Family Court Nedumangad in O.P
No.265 of 2013 passed an order declaring that the
petitioner herein namely, V.V Aswathy is the sole
guardian of the minor child Adeep B.A born in the
wedlock with the respondent. The order was
passed in an uncontested matter where the
respondent raised no objection in allowing such
prayers in the petition for declaration and
custody.
2. Thereafter, in the year 2022, the
respondent filed I.A No.1 of 2022 in the disposed
matter for interim custody of the child. This
petition has been allowed on 13.02.2023. The
operative portion of the order dated 13.02.2023
reads thus:
OP (FC) NO. 144 OF 2023
..3..
"In the result, the I.A is allowed in
part and the minor child Adeep B.A shall
be given to the custody of the
father/petitioner on every Sunday from 10
a.m till 5 p.m for one month and
thereafter from 10 a.m on every Saturday
till 5 p.m on the next Sunday until
further orders."
3. We are at dismay of passing such order
by the Family Court, without there being a
modification petition being filed by the
respondent to modify the concluded judgment.
Further, the Court will have to address the
welfare of the child even if this application has
to be treated as a modification petition. The
approach of the Family Court in entertaining such
application without modifying the final order,
according to us, is improper and unsustainable.
4. Though notice has been issued to the
respondent, none appeared.
5. In the particular circumstances of the
case, we are of the view that the Court below
committed error in exercises of jurisdiction and
therefore warrants interference under Article 227
OP (FC) NO. 144 OF 2023
..4..
of the Constitution of India and we do so.
Nothing prevents the respondent in moving the
Family Court to modify the earlier order in
accordance with law.
This original petition is disposed of as
above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
PR
OP (FC) NO. 144 OF 2023
..5..
APPENDIX OF OP (FC) 144/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOSTAT COPY OF THE
I.A.NO.1/2022 IN O.P.NO.265/2013 ON
THE FILES OF FAMILY COURT, NEDUMANGAD
DATED 19.12.2022
Exhibit P2 TRUE PHOTOSTAT COPY OF THE OBJECTION
IN I.A.NO.1/2022 IN O.P.NO.265/2013 ON
THE FILES OF FAMILY COURT, NEDUMANGAD
Exhibit P3 TRUE PHOTOSTAT COPY OF THE ORDER IN
M.C.NO.63/2012 ALONGWITH COMPROMISE
AGREEMENT DATED 01.01.2013
Exhibit P4 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN
O.P.(HMA) NO.265/2013 DATED 29.06.2013
Exhibit P5 TRUE PHOTOSTAT COPY OF THE ORDER DATED
13.02.2023 PASSED IN I.A.NO.1/2022 IN
O.P.NO.265/2013
