IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 20687 of 2009(R) -------------------------- OPGW.359/2009 of FAMILY COURT, THIRUVALLA .................... PETITIONER: --------------- K.K.HASSAN RAWTHER,AGED 64,CRESCENT VIEW KONNAMONKARA,ADOOR.PO,PATHANAMTHITTA. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENT: ----------------- THE STATE OF KERALA,REPRESENTED BY CHIEF SECRTARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(C)No.20687 OF 2009 ----------------------------------------------------- DATED THIS THE 20th DAY OF AUGUST, 2009 J U D G M E N T Basant, J. Petitioners are the maternal grandparents of a minor girl by name Naureen Abdul Azeez. They have filed O.P.(G&W) No.359/09 before the Family Court, Thiruvalla and their prayer is to appoint the mother and step father of the child as guardian and joint guardian of the child. 2. The respondent in that application is Dr.S.Abdul Azeez, the father of the minor child. 3. A brief narration of the sequence of events appears to be relevant considering the nature of the prayer made. Dr.S.Abdul Azeez, the father of the minor child was married to the mother of the minor child, by name Dr.Anjana Hassan. The minor child Noureen Abdul Azeez was born in that matrimonial relationship, on 14.4.1999. The marital tie between the father and mother of the minor child was dissolved by a contract of divorce entered into between the parties on 9.4.2006. A copy of W.P.(C)No.20687/09 -2- the same is produced as Exhibit P5. In that agreement, the following clauses are included as clauses 4 and 5. 4. The parties will continue to have all rights and obligations in law relating to their daughter Naureen A.Azeez and it is made clear that this agreement of divorce will not in any way prejudicially affect the interests of the minor child who is now aged 7 years and is in the custody of her maternal grandmother at Adoor in Kerala. 5. Subject to what is agreed herein above the 1st party shall have the right to see the female child at any time and can have her custody during the holidays and that the minor child shall not be taken out of Kerala by either party without specific consent of the other party.” (emphasis supplied) 4. Accordingly, the child continues with the petitioners who are her maternal grandparents. The child and the petitioners are at Adoor now. 5. Both the father and mother of the child have got W.P.(C)No.20687/09 -3- remarried. The father of the child is now understood to be in Saudi Arabia. But, his precise whereabouts are not known to the petitioners. 6. The mother of the child has got remarried. She along with her present husband M.Mohamed Rafi are now residing in the United States. The petitioners-the maternal grandparents, are aged 64 years and 61 years respectively and according to them they are, considering their state of health, now unable to undertake the responsibilities as guardians of their granddaughter. In these circumstances, arrangements have to be made in respect of the custody of the child, it is prayed. The mother of the child and the step father of the child are willing to take the child to the United States. To facilitate such taking of the child to the United States, visa has to be applied for and obtained. To facilitate that, they need orders of the court appointing the mother of the child as guardian and father of the child (the 2nd husband of the mother)as joint guardian. It is for this purpose that O.P.(G&W)No.359/09 was filed. 7. The petitioners face a genuine difficulty. They are not W.P.(C)No.20687/09 -4- aware of the present address of the father of the child, Dr.S.Abdul Azeez. They have some information that he is at Saudi Arabia. But, they did not know the precise address. They know the address of the place of permanent residence of the said Dr.Abdul Azeez in India at Trivandrum. Notices were taken out in that address, but that premises is seen locked and hence service could not be effected. The child has to be taken to the United States at the earliest, otherwise the child is likely to lose one year in her educational career. Therefore, the petitioners want steps to be taken immediately to ensure service on the father of the child, ie;Dr.S.Abdul Azeez. 8. Helpless as the petitioners are, they applied to the Family Court to take steps for service. According to the petitioners, they are willing to take out notice by affixture on the last known residence(permanent residence in India) of the father, Dr.S.Abdul Azeez. They are also willing to take out notice by publication in dailies having circulation at the place of permanent residence of the respondent in India( as also in local Malayalam newspaper having circulation in Saudi Arabia). But, W.P.(C)No.20687/09 -5- apprehending that these may not be sufficient to satisfy the court, they offered and prayed that they may be permitted to take out notice to the respondent in the O.P. through e-mail. According to the petitioners, the father of the child Dr.S.Abdul Azeez has two e-mail Ids., i.e., abdul azeez (saazeez2004@yahoo.co.in) and Abdul Azeez Subair Kunju (saazeez2004@gmail.com). They pray that they may be permitted to take out notice through e-mail to the respondent in the O.P. 9. The court below by the impugned order rejected the prayer holding that requisite rules have not been framed under section 122 and Order V Rules 9 and 25 of the Code of Civil Procedure. 10. We have called upon the Registry to report to us whether Rules have been framed under Order V, Rule 9(3) or under Rule 25 of the CPC. It is reported that no rules have so far been framed. 11. The learned counsel for the petitioners submit that there is great necessity for immediate service of notice on the W.P.(C)No.20687/09 -6- respondent in the O.P. Under the Code of Civil Procedure, unfortunately rules have not been framed, permitting service of notice by electronic mail. To tide over this extraordinary situation, it is prayed that this Court may be pleased to direct the court below to permit the petitioners to take out notice by e- mail, notwithstanding the fact that rules have not been framed. 12. We have considered all the relevant aspects. We are satisfied from the materials placed before us that there is an extraordinary situation and that there is great need for urgent and emergent service of notice on the respondent in O.P.(G&W) No.359/09. Notwithstanding the fact that relevant rules have not been framed, we are satisfied that it is necessary to ensure that notice is served on the respondent in the O.P. emergently by acceptable and reasonable means. 13. To meet extraordinary situations, we are certainly competent to issue appropriate directions under Article 227 of the Constitution of India. The future of a child and her education are involved and we are hence persuaded to invoke such extraordinary constitutional jurisdiction under Article 227 of the W.P.(C)No.20687/09 -7- Constitution of India. 14. In the result: (a) this Writ Petition is allowed. (b) the impugned order passed by the Family Court, Thiruvalla, dated 30.7.2009 in I.A.No.1668/09 is set aside. (c) The Family Court is directed to permit the petitioners to take out notice to the respondent in O.P.(G&W) No.359/09 (i) by affixture at the permanent residence (last known residence in India) of the respondent in Kerala. (ii) by effecting paper publication in a local daily having circulation at the place of permanent residence. (iii) by taking out publication in 'Madhyamam' daily which is said to be having circulation in Saudi Arabia also and (iv) by issue of notice by e-mail at both the email addresses,i.e., abdul azeez (saazeez2004@yahoo.co.in) and Abdul Azeez Subair Kunju (saazeez2004@gmail.com). W.P.(C)No.20687/09 -8- 15. The petitioners' counsel shall be permitted to issue notice by e-mail and produce acknowledgment in terms of Section 13 of the Information Technology Act. If acknowledgment is produced, it shall be deemed that there is sufficient service and the Family Court shall proceed accordingly. 16. Needless to say, in the peculiar facts and circumstances of the case, the Family Court must make every endeavour to dispose of O.P.(G&W)359/09 as expeditiously as possible - at any rate, within a period of 30 days from the date on which a copy of this judgment is placed before court. 16. Handover a copy of this judgment to the learned counsel for the petitioners for immediate production before the Family Court. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn