IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(Crl.).No. 390 of 2011(S) --------------------------- PETITIONER(S): -------------------- RADHESYAM T.NAIR, S/O.SARALADEVI S.NAIR, `ROSHNI NIVAS', CHANDANAKAVU, KURUMBATHOOR P.O., THIRUNAVAYA VIA, MALAPPURAM DISTRICT. BY ADV. SRI.SHIRAZ ABDULLA SRI.JOJO PAPPACHAN SMT.M.O.RATHNAMANI RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY SUPERINTENDENT OF POLICE, PALAKKAD. 2. LAKSHMI CHANDRAN, D/O.K.P.RAMACHANDRAN NAIR, `CHANDHINI', CHAMBATH-AMBATTUPALAYAM, CHITTUR P.O., PALAKKAD- 678104. R1 BY SR.GOVT.PLEADER SRI.P.K.BABU. R2 BY ADV. SRI.SANTHEEP ANKARATH. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPCR390/11 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 – COPY OF THE ORIGINAL PETITION SUBMITTED UNDER SECTION 13B OF HINDU MARRIAGE ACT BEFORE THE FAMILY COURT, MALAPPURAM. EXT.P2 – COPY OF THE ORDER DT.31.8.2009 OF THE FAMILY COURT, MALAPPURAM GRANTING DECREE OF DIVORCE. EXT.P3 – COPY OF THE AGREEMENT DT.28.2.2009 BETWEEN THE PETITIONER AND 1ST RESPONDENT. EXT.P4 – COPY OF THE AGREEMENT BETWEEN THE PETITIONER AND SRI.MOHANACHADRAN. EXT.P5 – COPY OF THE PRINTOUTS OF THE AIR TICKETS. EXT.P6 - COPY OF THE COMPLAINT TO THE 2ND RESPONDENT. SECOND RESPONDENT'S EXHIBITS: EXT.R2(A) – TRUE COPY OF PETITION DT.14.6.2010 IN HM(OP) NO.520/2010 FILED BY THE 2ND RESPONDENT BEFORE THE FAMILY COURT, PALAKKAD. EXT.R2(B) – TRUE COPY OF LETTER SENT BY MR.MOHANACHANDRAN DT.18.8.2011 TO THE PETITIONER. EXT.R2(C) – TRUE COPY OF RECEIPT EVIDENCING SENDING OF EXT.R2(B). -TRUE COPY- P.S.TO JUDGE. Thottathil B.Radhakrishnan & K.Surendra Mohan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = WP(Crl).No.390 of 2011-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of August, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.This writ petition is filed in relation to a minor boy Ankit Vikram of age around six years. 2.The child was born to the petitioner and the second respondent. The couple divorced on consent under Section 13B of the Hindu Marriage Act. In terms of the agreement between them which was part of the pleadings in the petition for divorce on mutual consent, the child was left to be with the custody of its father with visitation rights for the mother during holidays in India. The child was with the father and the paternal grandmother in Sharjah. 3.With the passage of time, the petitioner married. The second respondent also got married. WPCR390/11 -: 2 :- 4.Later, the petitioner brought down the child to India and put it in the custody of the mother for the purpose of the exercise of visitation rights in terms of the consent decree of divorce. While he acted so, the mother did not abide by the terms. 5.It is in the above backdrop that the father of the child filed this writ petition seeking the issuance of a writ of habeas corpus. 6.The answer of the mother is that she has obtained an order in Custody O.P.No.520 of 2010 of the Family Court, Palakkad. That order is passed ex parte the husband. We initially called for a report from the Family Court as to how and in which address the process was served on the husband. Later, we called for the lower court records of that case. We find that the notice was taken out to an address which, according to the husband, was no more his, even going by the WPCR390/11 -: 3 :- passport endorsements and also the different e- mails which he had sent to the second respondent. The address to which the notice was taken out, was identified on the basis of a Post Bag number and ultimately, the said notice was also returned by saying that it is unclaimed. Yet, we are not inclined to go further into the matter of sustainability, regularity, propriety, legality and correctness of the order of the Family Court. For one thing, we are not sitting in appeal against that order. Secondly and more importantly, the Family Court, having passed that order, cannot be criticized on the ground that it lacked jurisdiction to do so. It had subject matter jurisdiction. Therefore, we would have to leave it to the parties to work out their remedies before that Court in terms of the provisions that contained in the Order IX of the Code of Civil Procedure. 7.Be that as it may, the paramount consideration in such proceedings has necessarily to be the WPCR390/11 -: 4 :- interest of the child. As of now, the child is a student in a school in Sharjah. It is only in the Ist Standard. The child has also to undergo some procedure with a Dentist in Kozhikode. These are the immediate primary concerns. Equally, more important would be the management of the child with appropriate support for its evolution in the coming years to grow, physically and emotionally. Going by the objects sought to be achieved by the Family Courts Act and even the need to have the specialised Judges to preside over such courts, we are clear in our mind that this would be taken care of within the jurisdiction of the Family Court. 8.Therefore, even if an application to set aside the ex parte decree is filed by the husband and such proceedings are on, nothing prevents the Family Court from looking at the immediate needs of the child which is the subject of an order passed ex parte its father. The evolution of jurisprudence attendant to exercises of parens WPCR390/11 -: 5 :- patriae powers and authority necessarily advises that the interest of the child is the supreme concern. The child has, equally, rights in it for access to the parents. The rights of the child in terms of arrangements by which it was being governed can be interfered with only if the Courts are satisfied that it would be only in the best interest of the child to do so. It is not the competing claims of the parents that would govern the decision-making process of the Family Court. 9.In the aforesaid premise, the mother having shown the order of the Family Court, we would have to hold that the child is not in the illegal custody of the mother. At the same time, we need to hold that such custody of the mother commenced by the father voluntarily giving the child to the mother, obviously in consonance with the terms of the petition and decree for divorce on mutual consent under Section 13B. It seems to be apparent from the materials on record that the WPCR390/11 -: 6 :- child's father was wholly unaware of the proceedings before the Family Court. We say so because, the order of the Family Court was issued on 8.8.2011 and this writ petition is filed on 20.8.2011 and there are assertions even in relation to the knowledge of the wife as regards the address of the father of the child. 10.In the aforesaid circumstances, we close this writ petition ordering the second respondent to produce the child before the Family Court, Palakkad on 1st September, 2011 on which day, the petitioner and the second respondent will mark their appearance before that Court and if so advised, the petitioner would file application to have the ex parte decree set aside. If such petition is filed, the Family Court will make every endeavour to consider the matter most expeditiously since the clock would be ticking against the interest of the child's schooling where it is presently admitted, in Sharjah. We record the submission on behalf of the mother WPCR390/11 -: 7 :- that she has found a school in Kottayam for admission of the child. It is stated that she resides with her present husband in Changanacherry for the time being. At the same time, we also have to record the submission that the child had been staying with its father and the paternal grandmother in Sharjah since the consent divorce decree, following its earlier situation. 11.The learned Judge of the Family Court, having regard to the exigency of the situation, will make an endeavour to decide on the matter finally on or before 30.9.2011. We also clarify that it would be open to the learned Judge to consider whether any interim arrangement could be ordered taking the interest of the child into consideration and the parties will stand to be governed by those directions even if they leave the territory of India and any exit of the parties or the child to anywhere outside the jurisdiction of the Family Court, Palakkad will WPCR390/11 -: 8 :- be subject to such orders. The office will transmit the lower court records to the Family Court today itself by special messenger at the costs of the petitioner. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- K.Surendra Mohan, Judge. Sha/2908