IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 WP(C).No. 9944 of 2009(R) ------------------------- E.P.NO.11/2009 IN o.p.no.1078/2007 of Family Court, Ernakulam PETITIONER(S): --------------- SUMI, AGED 25,W/O.K.A. SAGEER,FLAT NO.4A,STAR HOMES, CHERUPARAMBATH ROAD,KADAVANTHRA, KOCHI-20,REP. BY P/A HOLDER CAPT.ABDUL AZIZ KUTTY (RETD.),S/O.LATE.M.ABDUL RAZAK,RETD.ARMY OFFICER, FLATNO.4A,STAR HOMES,PARADISE,KADAVANTHRA-20, ELAMKULAM VILLAGE,KANAYANNUT TALUK, ERNAKULAM. BY ADV. SRI.P.M.ZIRAJ RESPONDENT(S): --------------- K.A. SAGEER, S/O. LATE ABDUL KAREEM, AGED ABOUT 33 YEARS, KUNNATHU HOUSE, VELLANGALLOOR.P.O, IRINJALAKUDA, THRISSUR DISTRICT. ADV. SRI.C.S.MANU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * W.P.C.No.9944 of 2009 ---------------------------------------- Dated this the 1st day of April 2009 J U D G M E N T BASANT,J The petitioner and the respondent were spouses. Their marriage has been dissolved now. The custody of a child now aged about 4 years is the bone of contention. The respondent/husband had filed an application for custody of the child and that application was disposed of by Ext.P3 order on the basis of a compromise between parties. It is mentioned in Ext.P3 that the compromise is as per I.A.No.3706/08 which was directed to be part of the decree. As per that decree, the respondent herein has the right to visit the child and there is an undertaking that the child will be handed over to the respondent as and when he wants the same. According to the respondent, that undertaking was not complied with. This allegedly obliged him to file an execution petition before the Family Court. The petitioner did not allegedly make the child available. 2. After hearing both sides, the Family Court proceeded to pass Ext.P8 order. Directions were issued in that execution W.P.C.No.9944/09 2 petition to ensure that the child will be available for the 2nd respondent on specified dates of the week. (Copy of that order is produced as Ext.P8). The said order was not complied with, Ext.P9 order has been passed thereafter by the Family Court. 3. The petitioner at this juncture has come to this court with this writ petition. What is her grievance? She appears to be entertaining grievance against Ext.P3 order as also Ext.P8 order. They are orders which are appealable under Section 19 of the Act. Having not challenged those orders, we find absolutely no justification in the petitioner attempting to challenge those orders in this writ petition. We are, at any rate, convinced that it is not necessary in this application under Article 226/227 of the Constitution of India for this court to consider the grievance of the petitioner against Exts.P3 and P8 orders. 4. Admittedly Ext.P8 order, which was passed after hearing the petitioner, has not been complied with. We are unable to find fault with the tribunal for having initiated coercive steps as per Ext.P9 order. It appears to under Section that the petitioner must comply with Ext.P8 order. Child must be produced before the Family Court and appropriate further W.P.C.No.9944/09 3 directions can be sought. The option of the petitioner to challenge Ext.P3 and/or Ext.P8 order, if such challenge be other permissible under law, shall remain unfettered by the dismissal of this writ petition. Similarly, the option of the petitioner after producing the child before the Family Court to seek modification of Ext.P3 and/or Ext.P8 order shall also remain unfettered by the dismissal of this writ petition. In any view of the matter, we are not persuaded to agree that the extraordinary constitutional jurisdiction under Article 226/227 of the Constitution of India deserves to be invoked in favour of the petitioner who has not challenged Exts.P3 and P8 orders and has not complied with those orders. 5. With the above observations, this writ petition is dismissed. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr W.P.C.No.9944/09 4 W.P.C.No.9944/09 5 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009