IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 OP (FC).No. 1671 of 2011(R) --------------------------- OP.999/2009 of FAMILY COURT,KOZHIKODE .................... PETITIONER ------------------------------ NESSY.P, AGED 30 YEARS, D/O.KRISHNANKUTTY, `KRISHNA', CHELAVOOR, CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S): --------------- RANJITH KUMAR, AGED 35 YEARS, S/O.VASUDEVAN, KARUMATHIL HOUSE, THRIPPANGOTTU POST, KAIMALANCHERY AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT 673 564. ADV. SRI.P.K.MOHAMED JAMEEL FOR R-1 THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- O.P.(F.C.) No.1671 of 2011 ----------------------------------------------- Dated 10th June, 2011. J U D G M E N T Joseph, J. This Original Petition is filed with the following prayers :- (i) Call for the records leading to Ext.P10 order and Ext.P11 order and all consequential orders passed by the Honourable Family Court, Kozhikode, in I.A.No.182 of 2010 in O.P.No.999 of 2009 and to set aside the same. (ii) To direct the Honourable Family Court, Kozhikode not to give custody of the minor boy to the respondent without conducting an enquiry and without adjudicating the rival claims and without entering into a finding regarding the predominant interest of the child and not to implement such an order without giving a few days time to the petitioner to challenge the same. Briefly put the case of the petitioner is as follows : The petitioner is the respondent in I.A.No.182/10 in O.P.999/2009 on the file of the Family Court, Kozhikode, which is a petition submitted by the respondent under the Guardian and Wards Act, praying for custody of the minor child. It is the case of the petitioner that the marriage between the petitioner and the OP(FC)1671/11 2 respondent, in which the minor child was born, came to be divorced on the basis of the averments in Ext.P1 petition, vide Ext.P2 order. It is her case that the respondent is a homosexual person and he used to have sex with small boys and men. The dispute regarding custody of the child was settled and they filed a joint statement, Ext.P4. It is stated that the child was being produced. Learned counsel for the petitioner brought to the notice of the this Court, Exts.P8 and P9, purported to be a complaint and FIR and it is the case of the petitioner that giving custody of the child to the respondent would not be safe. Ext.P10 is an order, by which the Family Court directed the petitioner to produce the child. Ext.P11 is an order by which the police was directed to produce the child before the court. 2. We issued notice in the matter. We heard learned counsel for the petitioner and the respondent. Learned counsel for the respondent would submit that what is sought is one day's custody and he pressed the circumstance that the respondent's mother is not keeping well and she would like to see the child for a day. This would appear to be the substance OP(FC)1671/11 3 of the grievance and the purpose of getting one day's custody. Learned counsel for the petitioner would submit that the parties are divorced, but there may be no objection in the petitioner's mother taking the child to the house of the respondent, where his mother resides, so that the child can spend time in the house. Learned counsel for the petitioner submits that petitioner's mother will take the child at 9.30 a.m. on 13.6.2011 to the house of the respondent and the child can remain with the respondent, provided the mother of the respondent is also there. This arrangement can continue till 5 p.m. on the same day. Learned counsel for the respondent also does not object to the said course being adopted. Accordingly, we record the submission of the parties and direct that the petitioner will see that the child is taken by her mother, so as to reach the house of the respondent at 9.30 a.m. on 13.6.2011 and the child can spend time with the respondent and his mother till 5 p.m. 3. We direct that the petitioner's mother, respondent and the respondent's mother will not create any problem, when the custody, as ordered is worked. In the light OP(FC)1671/11 4 of the arrangement ordered, we direct that the orders, Exts.P10 and P11 need not be acted upon. The Original Petition is disposed of as above. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.