IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 Mat.Appeal.No. 887 of 2009() ---------------------------- AGAINST THE ORDER DATED 30/06/2009 IN IA 1376/2009 IN OP(G&W).724/2009 of FAMILY COURT,THIRUVANANTHAPURAM .................... APPELLANT/ RESPONDENT ------------------------- T.S. GRANCY, SECTION OFFICER, KERALA OFFICIAL LANGUAGE LEGISLATIVE COMMITTEE, PATTOOR, PETTA, THIRUVANANTHAPURAM. BY ADV. SRI.C.HARIKUMAR SMT.MOLLY KOSHY RESPONDENT: PETITIONER ------------------------- PRADEESH BABU, S/O.M.GF. CHANDRA BABU, KRISHNAMANGALAM, MANATHALA.P.O, THIRUVANANTHAPURAM. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== C.M. APPLICATION NO. 3321 OF 2009 & MAT APPEAL NO. 887 OF 2009 ============================ DATED THIS THE 18TH DAY OF NOVEMBER 2009 ORDER/JUDGMENT Basant,J. We have heard the learned counsel for the appellant for admission in this Mat Appeal. The facts of the case do disturb us. Without going into the technical question whether an appeal is maintainable against impugned order which is only an ad interim order in an interlocutory application in an original petition for custody of a minor child, we are satisfied that appropriate directions can be issued. 2.The appellant/wife and the respondent are spouses. The appellant is employed in Thiruvananthapuram whereas the respondent/husband is employed in Chennai. There is a strain in the matrimony and the spouses are residing separately. Two children were born in the wedlock. The age of the elder child is four MAT APPEAL NO. 887/2009 -2- years and this appeal is concerned with the custody of that child. The younger child aged seven months is admittedly in the custody of the appellant herein. 3. According to the appellant, when she was residing along with her two children at Thiruvananthapuram, on 11-6-2009 the elder child aged four years was removed from her custody by the parents of the respondent. In anguish and agony, the appellant approached the Magistrate under the provisions of the Domestic Violence Act and the learned Magistrate directed that the child be returned to the custody of the appellant. At that juncture without informing the Family Curt of the pendency of the proceedings before the Magistrate under the Domestic Violence Act, O.P. (G&W) No.724/2009 was allegedly filed by the respondent- husband. According to the appellant, to frustrate relief being claimed by her from the Magistrate in proceedings under the Domestic Violence Act, the husband sought an interim order of injunction in I.A.No.1376/2009. It is in such I.A.,that the impugned ad interim order is passed by the Family Court. 4. The appellant claims to be aggrieved by the impugned MAT APPEAL NO. 887/2009 -3- order, but after discussions at the Bar, the learned counsel for the appellant submits that the appellant would be satisfied, if the Family Court disposes of I.A.No.1376/2009 and issues appropriate directions regarding the custody of the minor child aged 4 years. 5. We find the said request to be absolutely justified. I.A.No.1376/2009 has got to be disposed of as expeditiously as possible. Whether specific directions were sought in I.A.No.1376/2009 or not regarding the custody of the 4 year old child, the learned Judge of the Family Court must now pass appropriate orders in I.A.No.1376/2009. Appropriate directions regarding the custody of the child must also be issued by the learned Judge. 6. We are satisfied, in these circumstances, that with specific directions to the Family Court to dispose of I.A.No.1376/2009 expeditiously and with further specific directions to make appropriate arrangements regarding the custody of the minor child aged 4 years, in such order to be MAT APPEAL NO. 887/2009 -4- passed in I.A.No.1376/2009, this appeal can be disposed of. 7. It is submitted that the Family Court, Thiruvananthapuram is without a presiding officer now. It is submitted that unless specific directions are issued, no orders are likely to be passed in I.A. No. 1376/2009. We note that the Principal District Judge is the Additional Family Court, Thiruvananthapuram and the Principal District Judge as Additional Family Court is in charge of the Family Court in the absence of the Presiding Officer for that court. We are satisfied that appropriate directions can be issued to the Additional Family Court/Principal District and Sessions Judge, Thiruvananthapuram. We are further satisfied that it is not necessary in these proceedings to order notice to the respondent in the nature of the directions that we propose to issue. We are satisfied that though a Mat appeal may not be maintainable in the light of the language of Section 19 of the Family Courts Act, we will be justified in invoking our jurisdiction under Article 227 of the Constitution of India . MAT APPEAL NO. 887/2009 -5- 8. In the result, the following directions are issued invoking our jurisdiction under Article 227 of the Constitution of India: 1)The Family Court, Thiruvananthapuram (or the Judicial Officer presently in charge of that court) shall forthwith dispose of I.A.No.1376/2009 in accordance with law after advancing the same, if necessary, 2)It is further directed that while disposing of I.A.No.1376/2009, the learned Judge shall make appropriate arrangements in the interests of justice and in the interest of the welfare of the child regarding the custody of the child pending disposal of O.P.No.724/2009. 3) Hand over a copy of this order to the learned counsel for the appellant, who shall forthwith produce the same before the Additional Family Court, Thiruvananthapuram-in charge of the Family Court, Thiruvananthapuram. MAT APPEAL NO. 887/2009 -6- 4) The learned Judge shall after notice to the counsel for respondent herein dispose of I.A.No.1376/2009 as already directed as expeditiously as possible, at any rate, within a period of ten days from the date on which a copy of this judgment is placed before the court below. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.