IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 18409 of 2009(R) -------------------------- OP.1195/2007 of FAMILY COURT,ERNAKULAM .................... PETITIONER(S): --------------- DR.M.BHASI,PROFESSOR, COCHIN UNIVERSITY, QUARTER NO.TYPE 1 NO.6,COCHIN UNIVERSITY P.O. SOUTH KALAMASSERRY, ERNAKULAM. BY ADV. SRI.M.S.UNNIKRISHNAN RESPONDENT(S): --------------- 1. A.V.SWAMINATHAN, AGED 60 YEARS, S/O.LATE VELAYUDHAN, ANDICOT HOUSE, ARIPPALAM, IRINJALAKKUDA. 2. MRS.LATHIKA RANI, W/O. A.V.SWAMINATHAN, ANDICOT HOUSE, ARIPPALAM, IRINJALAKKUDA. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * W.P.(C).No.18409 of 2009 ---------------------------------------- Dated this the 1st day of July 2009 J U D G M E N T BASANT,J The petitioner has come to this court again in a matter pending before the Family Court as O.P.No.1195/07. He is the respondent in that O.P. That O.P relates to the claim of the maternal grand parents of the minor child of the petitioner for opportunity to meet their grand child and to interact with the child at the time and frequency specified by the court earlier. The petitioners had come to this court challenging an interim order and the same was allowed in part by order dated 01/06/2009 in W.P.C.No.12390/09. The petitioner had raised an issue of maintainability and an observation was made in the order in that W.P.C that the issue of maintainability can be raised before the Family Court. 2. The said issue of maintainability was raised and it was considered by the Family Court by the impugned order (copy of which is produced as Ext.P4). The court found that the original petition is maintainable. W.P.C No.18409/09 2 3. The petitioner claims to be aggrieved by the impugned order. What is his grievance? The short grievance of the petitioner is that a home study report as mandated by Rule 58 of the Family Court Kerala Rules 1989 has not been produced by the petitioners who are neither natural parents nor natural guardians of the child in question. We extract Rule 58 below: Application to be accompanied by home study report: - (1) Every application for guardianship, when it is by a person other than the natural parent or natural guardian of the child shall be accompanied by a home study report of the persons asking for such guardianship and his/her spouse, if any, prepared by an approved family welfare agency or a suitably trained social worker. A list of such agencies and/or persons shall be prepared by the Judge and Principal Counsellor in consultation with the High Court. (2) When the petition for guardianship is so filed by a foreigner the Court may accept a home study report prepared by a recognised family welfare agency of the country where the foreigner resides. (emphasis supplied) 4. Though the expression used in Rule 58 is 'shall', we are unable to agree that the omission to produce such a home study report would be fatal and should entail the rejection of the petition as not maintainable. Nay, it is not necessary to go into that aspect in any greater detail. Rule 58 applies only for W.P.C No.18409/09 3 “application for guardianship”. In the instant case, the petitioners before the Family Court have evidently not claimed appointment as guardian or custody of the children. The limited prayer is for opportunity to interact with the children. We are not satisfied, in these circumstances, that the non-compliance strictly with Rule 58 should affect the maintainability of the petition. 5. The challenge raised in this writ petition must, in these circumstances, be held to be not sustainable. This writ petition is accordingly dismissed. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr W.P.C No.18409/09 4 W.P.C No.18409/09 5 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 18/06/2009