IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 OP (FC).No. 488 of 2011(R) ------------------------------------- MC.900/2007 of FAMILY COURT, MALAPPURAM .................... PETITIONER -------------------- 1. SIDDIQUE K.K.AGED 30 YEARS, S/O. SHAMSOO, SIDDIQUE HOUSE, THOTTAMKUNIPADAM, NALLALAM, KOZHIKODE DIST. 2. UMMAYYA KUTTY, AGED 58 YEARS, W/O.MODIEEN KOYA, SIDDIQUE HOUSE, THOTTAMKUNIPADAM, NALLALAM, KOZHIKODE DIST. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): ------------------------- 1. SUBHAIRAT, D/O. MARAKKARKUTTY, AGED 30, KARALIKKADAN KALATHINGAL VEEDU, POONKUDY, UGRAPURAM, AREEKODU, MALAPPURAM DIST. 676 310. 2. MOHAMMED IRSHAD, AGED 10 YEARS (MINOR), S/O. SIDDIQUE, KARALIKKADAN KALATHINGAL VEEDU, POONKUDY, UGRAPURAM, AREEKODU, MALAPPURAM DISTRICT 676 310. 3. MOHAMMED IRFAD, AGED 7 YEARS,(MINOR) S/O. SIDDIQUE, KARALIKKADAN KALATHINGAL VEEDU, POONKUDY, UGRAPURAM, AREEKODU, MALAPPURAM DISTRICR 676 310. 4. IRFANA, AGED 5 YEARS,(MINOR), D/O.SIDDIQUE, KARALIKKADAN KALATHINGAL VEEDU, POONKUDY, UGRAPURAM, AREEKODU, MALAPPURAM DISTRICT 676 310. (MINOR PETITIONERS 2 TO 4 ARE REPRESENTED BY GUARDIAN MOTHER IST RESPONDENT AS IN THE COURT BELOW.) R1 BY ADV. SRI.M.MUHAMMED SHAFI THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(FC) NO.488/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEMORANDUM OF ORIGINAL PETITION IN OP. NO.841/07 ON THE FILES OF THE FAMILY COURT, MALAPPURAM. P2:- COPY OF THE JUDGMENT IN MC. 900/07 OF THE FAMILY COURT, MALAPPURAM. P3:- COPY OF THE ORDER OF THE HONOURABLE HIGH COURT IN OP 841/07 DT.D 5.5.08. P4:- COPY OF THE ORDER IN RP(FC) 447/09 OF THIS HONOURABLE COURT DT. 23.12.09. P5:- COPY OF THE JUDGMENT IN MAT APPEAL 944/09 DTD. 9.12.09. P6:- COPY OF THE AFFIDAVIT AND PETITION TO CONDONE DELAY FILED BEFORE THE COURT BELOW DTD. 14.1.2010. P7:- COPY OF THE AFFIDAVIT AND PETITION FOR SET ASIDE EX-PARTE ORDER DTD. 14.1.10. P8:- COPY OF THE PETITION TO CONDONE DELAY IN FILING THE PETITION TO SET ASIDE EX-PARTE ORDER IN MC. 900/07 IS DTD. 14.1.2010. P9:- COPY OF THE PETITION TO SET ASIDE THE EX-PARTE ORDER IN MC. 900/09 IS DTD. 14.1.2010. P10:- COPY OF THE COMMON ORDER PASSED BY FAMILY COURT, MALAPPURAM DTD. 31.3.2010 IS PRODUCED HEREWITH AND MARKED AS EXT.P10. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. * * * * * * * * * * * * * * * * * * * * * * * * O.P.(F.C) No.488 of 2011 --------------------------- Dated this the 5th day of July 2011 J U D G M E N T Thottathil B.Radhakrishnan, J. This is an original petition filed invoking Article 227 of the Constitution of India. Looking into the matter, we find that the respondents initiated two different proceedings before the Family Court; one referable to Section 7(1) of the Family Court Act and the other referable to Section 7(2) of that Act read with Chapter IX of Code of Criminal Procedure. Both matters were decided on default in favour of the wife and the minor children. Petitioners, the father and the grand father of the minors now challenge the common order by which the Family Court has set aside the ex parte decisions, on terms. 2. Though the fundamental contentions urged by the petitioners before us is on the illegality and sustainability of the conditions imposed by the Family Court which, according to O.P.(F.C).No.488/2011 2 them, are rigorous, we are inclined to think that there is a fundamental procedural defect committed by the Family Court. This may tend to lead even to jurisdictional issues and matters affecting maintainability of proceedings before the superior courts. In terms of Section 19 of the Family Court Act, appeals and revisions are provided. Section 19(4) takes care of orders passed by the Family Court in exercise of authority under sub section 2 of Section 7 of the Family Court Act read with Chapter IX of the Code of Criminal Procedure. Other provisions in Section 19 also clearly indicate that the dichotomy of proceedings which are both civil and criminal in nature continue to be maintained notwithstanding anything contained in terms of the Family Court Act 1984. Therefore, a person challenging an order passed in jurisdiction referable to Section 7(2) of the Family Court Act read with Chapter IX of Cr.P.C has necessarily to take recourse to such remedies as would be available with reference to such proceedings, even if Article 227 becomes necessary to be invoked; but such proceedings cannot be inter twined with proceedings generated from an original petition or other proceedings which fall under Section 7(1) of the Family O.P.(F.C).No.488/2011 3 Court Act. 3. Faced with the aforesaid situation, the learned counsel for the petitioners points out that error has been committed by filing only one petition because a common order has been issued by the Family Court. This would not have been an excuse for the petitioners since courts in one jurisdiction can issue common orders in relation to different matters. But, the procedural and substantive law, as of now, stands to advise that proceedings which are predominantly civil cannot be mixed up with proceedings which are predominantly criminal or even quasi-criminal. 4. Therefore, to put the records straight, we deem it appropriate to set aside Ext.P10 without expressing anything on merits and direct the Family Court to hear the parties afresh at the earliest and pass separate orders on the interlocutory applications filed in relation to the civil proceedings and criminal proceedings; that is to say, separate orders in relation to O.P.No.841/2007 and in relation to M.C.No.900/07 of the Family O.P.(F.C).No.488/2011 4 Court, Malappuram. Though we proceed to set aside that order, we direct that whatever the respondents herein have enjoyed on the basis of the interim orders of this Court, will be taken as effectuated. 5. For the aforesaid reasons, we set aside the impugned Ext.P10 order and direct the parties to mark their appearance before the Family Court, Malappuram on 18/07/2011. We clarify that we have not expressed anything on the merits of the matter and the Family Court will decide the petition untrammeled by anything stated in this judgment on the rival contentions, on facts. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (K.SURENDRA MOHAN, JUDGE) jsr