IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 OP (FC).No. 1664 of 2011(R) ------------------------------------------------ AGAINST THE ORDERS DATED 07/05/2011 AND 18.5.2011 IN IA.802/2011 IN OP.253/2011 of FAMILY COURT, PALAKKAD .................... PETITIONER: ------------------ SMITHA, D/O. LEELA KANOOR AGED 34 YEARS, “PRANAVAM”, PALAPPURAM PO, OTTAPALAM. BY ADV. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA RESPONDENT(S): ------------------------ GIREESH, S/O,.SUNDARESWARAN, “SAPTAGIRI”, MANALMANTHA, AMBIKAPURAM PO PALAKKAD 678 702. SR. GOVERNMENT PLEADER SHRI C. M. KAMMAPPU. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- O.P.(FC).NO. 1664 OF 2011 R ------------------------------------------ Dated this the 24th May, 2011 JUDGMENT K.M. Joseph, J. This is a petition under Article 227. Challenge is raised against Exts.P4 and P7 which are orders passed by the Family Court. 2. The respondent who was the husband of the petitioner, filed a petition as Ext.P1 under Section 12 of the Guardian & Wards Act in O.P.No.253 of 2011 wherein the prayer was to appoint him as the guardian of the minor son of the petitioner and the respondent. Ext.P4 would show that the petitioner was served, but found absent. She was set ex parte. The court noticed that the petitioner is re-married and her present husband has a son from his past wife. It is stated that when notice was served on the petitioner, she did not respond and notice was directed to be issued OP(FC).NO.1664/2011 R 2 directly to the petitioner to produce the child on 13.5.2011. Ext.P5 evidences issue of notice by special messenger on 13.5.2011. The case was directed to be called on 18.5.2011. Ext.P7 reads as follows: “Respondent appears and child not produced. Counsel for respondent submitted that she is hospitalized. Hence the respondent is directed to produce the child on 25.05.2011.” 3. We heard the learned counsel for the petitioner. He would submit that the petitioner is hospitalised as evident from Ext.P7 and according to the petitioner, her present state of affairs is that she is due to deliver a child, which is brought to the notice of the court by the counsel. But, the court below was adamant and stated that the child should be brought before the court. The boy is studying only in IIIrd Standard and he is not prepared to be separated from the mother. It is also stated in the petition that the counsel has pleaded that she may be given an opportunity to prefer OP(FC).NO.1664/2011 R 3 an application to set aside the ex parte order and no such opportunity was given. 4. We must remind ourselves that we are dealing with a matter under Article 227 of the Constitution. No jurisdictional error or illegality is established before us. The matter relates to interim custody. It would appear from Ext.P4 that the minor son has his vacation till the last week of June, 2011. Essentially, the order discloses that the court has directed production of the child. We see no reason why we should interfere. The Original Petition fails and it is dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// PS to Judge OP(FC).NO.1664/2011 R 4