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 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 18220 of 2010(R) -------------------------- OP.1237/2009 of FAMILY COURT,TRIVANDRUM .................... PETITIONERS: --------------- 1. SUCHITHRA BALAN, D/O. UMAYAMMA, FLAT NO. 101, HIGH FRAME TOWERS, UPPALAM ROAD, THIRUVANANTHAPURAM. 2. ARYA .S. NAIR (MINOR) D/O. G.S. RAJESH @ RAJESH NAIR, RESIDING AT FLAT NO.101, HIGH FRAME TOWERS, UPPALAM ROAD, THIRUVANANTHAPURAM BY ADV. SRI.S.SURESH BABU SRI.R.V.SREEJITH RESPONDENT: --------------- RAJESH NAIR, S/O. GOPALAKRISHNAN NAIR, G.D., CLOUD OF APARTMENT, NEAR LAW COLLEGE, BARTON HILL, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.N.R.SURESH KUMAR FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(C) No.18220 of 2010 ********************* Dated this the 6th day of August, 2010 JUDGMENT BASANT, J. The challenge in this writ petition is against Exts.P3 and P7 orders. The contestants are spouses. The bone of contention is the custody of a 4 year old girl child born to them. That child, it is seen, has also been arrayed as petitioner No.2. Petitioner No.2 is admittedly in the custody of her mother, i.e. petitioner No.1. O.P.(G&W) No.1237/2009 was filed by the petitioners herein to declare the first petitioner as the guardian of the second petitioner and for other ancillary reliefs. While that O.P.was pending, the respondent/husband/father filed a petition for interim custody. That I.A.No.688 of 2010 was disposed of by Ext.P3 order. The said order, which is very short, is extracted below: “Petition for interim custody. Objection not filed. The respondent counsel is also absent and no representation is also made. As the petitioner has no objection the prayer allowed as follows: W.P(C) No.18220 of 2010 2 The interim custody of the child Ariya S.Nair is given to the petitioner on all Sundays and 7 days on Onam and X mas holidays and 1 month during the mid-summer vacation. The order shall come into operate from the 1st May onwards. No cost.” 2. It is evident from the order that this is an ex parte order and passed without considering the contentions of the petitioners herein. First petitioner, therefore, filed a petition to set aside that ex parte interim order. That petition was dismissed by the learned Judge of the Family Court with the following observations. “ Heard both sides and perused the records. Th averments in para.7 of the affidavit filed in support of the petition is incorrect. I have considered and passed order in I.A.No.688/2010 in the open court. Though there was an order in the main O.P. to appear both parties in the Chamber for ascertaining the possibility of conciliation, the petitioner herein was absent. Hence not taken up in the Chamber at the A.N. session but disposed of the I.A. in the open court at the F.N. session itself and adjourned the case to 15.6.2010 for considering the same in the Chamber.” W.P(C) No.18220 of 2010 3 3. The learned counsel for the petitioner points out that the reasons given in Ext.P7 extracted above run counter to the statements in Ext.P3. In Ext.P3, there is evidently no consideration of the contentions. We are, in these circumstances, satisfied that Ext.P3 and Ext.P7 deserve to be set aside and the court below must be directed to dispose of I.A.No.688/2010 afresh on merits. 4. The learned counsel for the respondent submits that O.P.(G&W) No.1237/2009 has already been dismissed. In fact, the counsel points out that the said O.P.was dismissed on 10/6/2010, the date on which this writ petition was filed. The learned counsel for the petitioner however submits that an application for restoration of O.P.(G&W)No.1237/2009 is pending. 5. In any view of the mater, we are satisfied that Exts.P3 and P7 deserve to be set aside. If O.P.No.1237/2009 is restored, the court below shall dispose of I.A.No.688/2010 in O.P.No.1237/2009 afresh in accordance with law after giving the 1st petitioner herein an opportunity to file fresh objections and to advance their contentions. W.P(C) No.18220 of 2010 4 6. This writ petition is, in these circumstances, allowed. Exts.P3 and P7 are set aside. The court below is directed to dispose of I.A.No.688/2010 afresh in accordance with law after giving an opportunity for the petitioners herein to file their objections (if the same has not already been filed) and after hearing the arguments of both sides. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) ks/