IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 24612 of 2010(R) -------------------------- OPG&W.620/2010 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER(S): --------------- REMLA BEEVI, D/O.YUSUF KUNJU, RESIDING AT VALIYAKUZHI, EDAPPALLY VILAYIL VEEDU, VEKKAL, NILAMEL P.O., NILAMEL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DT. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): --------------- SHAJAHAN, AGED 44, S/O. ABDUL SAMAD, PULLIPACHA THADATHARIKATHU VEEDU, PANGALKADU, PULIPPARA P.O., KUMMIL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DT. BY SR. G.P. SRI. K.J. MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- W.P.(C) No. 24612 of 2010-R ------------------------------------------------- Dated this the 7th day of September, 2010 JUDGMENT Basant,J. This writ petition is filed by the wife of the divorced husband. Divorce is effected by unilateral pronouncement of talaq on 04/6/10. The husband filed an application for custody of two minor children - both boys aged 6 years and 4 years. By the impugned ex parte order, the Family Court directed that the interim custody of both the children be handed over to the respondent/father. 2. The petitioner claims to be aggrieved by the impugned order. According to her, the impugned ex parte order happened to be passed under strange circumstances resulting in failure and miscarriage of justice. The Family Court, Kottarakkara, was not sitting on the relevant date. The petitioner did not W.P.(C) No. 24612 of 2010 -: 2 :- know that the said petition is likely to be called before the court which was holding charge. Unfortunately, without any specific notice to the petitioner, the interim application happened to be called before the court holding charge and the impugned ex parte order happened to be filed. Without giving opportunity to the petitioner to raise any contentions and without considering any such contentions, the Family Court had proceeded to pass the impugned ex parte order whereunder custody of young children aged 4 years and 6 years which as per personal law applicable to the parties legitimately belongs to the petitioner has been denied to her. It is prayed that the extraordinary constitutional jurisdiction under Art.227 of the Constitution may be invoked to set aside the impugned order. 3. The respondent has entered appearance. The learned counsel for the respondent points out that the impugned order being an ex parte order, the petitioner's grievance that she was wrongly set ex parte must legitimately be raised before the Family Court. 4. The technicality notwithstanding, we are satisfied that the impugned order warrants interference as on the face of it amounts to failure and miscarriage of justice. The divorced mother has been deprived of the custody of her two minor W.P.(C) No. 24612 of 2010 -: 3 :- children aged 4 years and 6 years without and before hearing her and considering her objections. We are satisfied that the impugned order warrants interference. 5. In the result: (a) This writ petition is allowed. (b) The impugned order is set aside. (c) The parties are directed to appear before the Family Court on 18/9/10. 6. A copy of this judgment shall be handed over to the learned counsel for the petitioner who shall produce the same before the Family Court on that date i.e, 18/9/10. The Family Court shall proceed to dispose of I.A.No.1842/10 on merits in accordance with law as expeditiously thereafter as possible. Sd/- R. BASANT (Judge) Sd/- M.L. JOSEPH FRANCIS (Judge) Nan/ //true copy// P.S. to Judge