IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 WP(C).No. 21570 of 2009(R) -------------------------- PETITIONER : --------------- MANJU, D/O.BHASKARAN NAIR, AGED 33 YEARS, RESIDING AT CHATHARATHALA HOUSE, CHENCHERY, NALANCHIRA.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA RESPONDENT : --------------- SURESHKUMAR, AGED 39 YEARS, RESIDING AT T.C.NO.29/1344 (1), SAI PRABHA, APPUPAN COIL ROAD, PALKULANGARA, PETTAH.P.O, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(C) No.21570 of 2009 ------------------------------------- Dated this the 31st day of July, 2009 JUDGMENT BASANT, J. This Writ Petition under Article 227 of the Constitution of India is filed by the mother against an interim order passed in a pending petition filed under the Guardian and Wards Act by the respondent/father of the child for interim custody of the child. The learned Judge of the Family Court by the impugned order directed that the child, aged about 9 years, be handed over to the custody of the respondent/father on the 4th Saturday of every English calendar month to be returned to the mother on the following Monday. 2. Marriage is admitted. Application for divorce is pending, it is submitted. There is no dispute about paternity. The father had asked for temporary custody of the child, but by the impugned order, only visitorial rights/interim custody was granted to the above extent. The petitioner claims to be aggrieved by the impugned order and notwithstanding the fact that an appeal is not maintainable under Section 19 of the Family Courts Act against the impugned interim order, prays that the extraordinary constitutional jurisdiction under Article 227 may be invoked to set aside the impugned order. W.P(C) No.21570 of 2009 2 3. What is the reason ? What is the perversity ininjustice and perversity resulting from the impugned order ? 4. To our pointed queries, the learned counsel for the petitioner submits that earlier, by order dt.06.04.09, the previous incumbent in office of the Family Court had only granted the respondent/father permission “to see the child when the child is brought before court on every second Saturday between 10 a.m and 11 a.m” as per orders passed in O.P.No.826 of 2006. That order was modified unnecessarily without even reference to that earlier order. This is the only technical contention on the basis of which invocation of the jurisdiction under Article 227 is claimed. Of course the counsel further submits that the respondent is a person who has shown no concern for the child. No maintenance has been paid for a long period of time to the child, it is submitted. 5. We must remind ourselves that the prayer is for invocation of the extraordinary constitutional jurisdiction under Article 227. Unless there be gross error in procedure resulting in miscarriage or failure of justice, this Court need not and shall not invoke such extraordinary constitutional jurisdiction. Paternity is admitted. In spite of our specific query, nothing has W.P(C) No.21570 of 2009 3 been brought to our notice to show that the father is in any way disentitled to the custody of the child. The child needs the father and the mother. The mother is in custody of the child. The short opportunity given to the father by the impugned order to keep custody of the child on specified days does not, according to us, in any way result in any failure or miscarriage of justice. The Family Court, to our mind, has committed no error warranting correction invoking such extraordinary constitutional jurisdiction. We take note of the submission of the learned counsel for the petitioner that no maintenance has also been paid to the child by the father. It is admitted before us that no such prayer has been made. It is for the petitioner to make such prayer, in which event, the Family Court must consider such prayer and issue expeditious orders. 6. This Writ Petition is, in these circumstances, dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-