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 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).No. 7829 of 2010(R) ------------------------- OP.1254/2008 of FAMILY COURT, ALAPPUZHA .................... PETITIONERS: --------------- 1. PRAVEEN JAYAKUMAR, AGED 34, S/O.R.V.JAYAKUMAR, SINDHOOR, ANCHERIL GARDENS, GANDHINAGAR, KOTTAYAM, NOW RESIDING AT LAS VEGAS NV 89134, USA, REP.BY POWER OF ATTORNEY HOLDER ANITHA JAYAKUMAR, W/O.DR.R.V.JAYAKUMAR, SINDHOOR, ANCHERIL GARDENS, GANDHI NAGAR, KOTTAYAM 2. ANITHA JAYAKUMAR, AGED 54 YEARS, W/O.DR.R.V.JAYAKUMAR, SINDHOOR, ANCHERIL GARDENS, GANDHINAGAR, KOTTAYAM. BY ADV. SMT.LEKHA SURESH SRI.ASHOK SURESH RESPONDENTS: --------------- VEENA @ SWEETY, AGED 29, D/O.K.S.SHAJI, KONCHERRY BHAVAN, MAYITHARA, CHERTHALA, KOTTAYAM. ADV. SRI.VARGHESE C.KURIAKOSE FOR R SMT.M.T.RANIMOL FOR R SRI.ADEEP ANWAR FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 5.4.2.2010. THE COURT ON 25.5.2010 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PROOF AFFIDAVIT OF THE PETITIONERS IN O.P. NO. 1254/08 DATED 8.2.2010 EXT.P2 : ORDER OF THE FAMILY COURT ALAPPUZHA IN O.P.M(G&W) 1254/08 DATED 10.2.2010. RESPONDENT'S EXHIBITS: EXT.R1(a) : TRUE PHOTOSTAT COPY OF THE PETITINER O.P. NO.1254/08. EXT.R1(b) : TRUE PHOTOSTAT COPY OF OBJECTION IN O.P.1254/08 EXT.R1(c) : TRUE PHOTOSTAT COPY OF THE PETITION IN O.P.1010/09 EXT.R1(d) : TRUE PHOTOSTAT COPY OF OBJECTION IN O.P. NO.1010/09. // TRUE COPY// K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 7829 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2010 JUDGMENT Joseph Francis J., This Writ Petition is filed under Article 227 read with Article 226 of Constitution of India with the following prayers: (i) Call for the records to Ext.P2 and to issue a writ of Certiorari or any other appropriate Writ order or direction quashing the same. (ii) Direct the Family Court to try and dispose of O.P. No. 1254 of 2008 independently at the earliest. 2. The case of the petitioner is briefly as follows. The petitioners are the petitioners in O.P. No. 1254 of 2008 of the Family Court, Alappuzha which is a petition filed under the W.P.(C) No. 7829 of 2010 2 Guardians and Wards Act, praying inter alia for permanent custody of minor Neha Jayakumar born in the wedlock of the 1st petitioner with the respondent. The 2nd petitioner is the mother of the 1st petitioner and his power of attorney holder. O.P. No. 1010 of 2009 is a petition filed by the 1st petitioner for dissolution of his marriage with the respondent. 3. The 1st petitioner is a doctor by profession and is at present doing his MD in Internal Medicine at the University of Nevada, School of Medicine at Las Vegas, USA. It is a continuous 3 year residency program of which he has already undergone two and a half years. If he is discontinuing this course half way, he will have to pay the US Government a huge amount as compensation, apart from wasting the efforts and time spent on this course. Therefore he caused to file O.P. No. 1254 of 2009 on 2.12.2008 for permanent custody of his only child through the 2nd petitioner as his power of attorney holder and in her individual capacity as the grandmother of the child at a point of time when he felt that any further delay in taking custody of the minor child from the W.P.(C) No. 7829 of 2010 3 respondent will be highly detrimental to the interest of the child. 4. The respondent has left the matrimonial home on 2.6.2007 and filed a petition under 498 A of the IPC against the 1st petitioner, his parents, only brother and 78 year old grandmother. This she did with a view to stop the marriage of the 1st petitioner's brother on its eve and to prevent the 1st petitioner from joining the MD course. The Magistrate Court took cognizance of the offence against the petitioner relying on the false evidence produced by her. The respondent has challenged the order discharging others. She has openly declared that she will see to it that the petitioner's kith and kin are put behind the bars at least for one day. The 1st petitioner came to know that the respondent is trying to go to America. If that happens she can play havoc to his life. Therefore he was compelled to file O.P. No. 1010 of 2009. The 1st petitioner came to India to appear before the Family Court Alappuzha on 28.11.2009. 5. The subsequent developments that happened after filing the O.P. 1254 of 2008 proved that the petitioner's apprehensions were not ill founded. The respondent is at present working in W.P.(C) No. 7829 of 2010 4 Coimbatore and is staying in a hostel there, leaving the child with her parents. The respondent's parents are involved in several criminal cases for cheating. Her father is an alcoholic. Her mother is busy evading and pacifying creditors and defending criminal cases against her and the respondent's father. They have absolutely no time for the child. There respondent's brother has left India. All these will be very traumatic for the child. The petitioners do not want the child to suffer in the situation prevalent in the respondent's house. Therefore the petitioners pressed for urgent orders in O.P. as admission for the next academic year to good schools providing quality educations has already started. 6. As per the order dated 23.1.2009 the Court below posted the case for evidence on 10.02.10. On that day the petitioners explained the difficulty of the 1st petitioner to appear in Court to give evidence in O.P. No. 1010 of 2009 before August 2010. On 8.2.10 the petitioners filed their proof affidavit in O.P. No. 1254 of 2008. However on that day the Learned Family Court ordered joint trial of O.P. No. 1254 of 2008 with O.P. No. 1010 of 2009 without W.P.(C) No. 7829 of 2010 5 even a request for that from either of the parties. Being a divorce petition the 1st petitioner has to appear in person to give evidence in O.P. No. 1010 of 2009 and it is impossible for him to appear in Court before August 2010 without disrupting his studies which will have far reaching adverse impart on his life and if the question of custody is not decided at the earliest it will be difficult to get admission for the child in a good school for the next academic year also. The court has not considered the welfare of the child which is very important while ordering joint trial of O.P. 1254 of 2008 with O.P. No. 1010 of 2009 in which even pre-trial steps are not complete. The learned Honourable Family Court, Alappuzha has failed to exercise the jurisdiction vested in it properly by ordering joint trial. Hence this Writ petition challenging that Ext.P2 order. 7. The respondent filed counter opposing the prayers. 8. Heard the learned counsel for the petitioners and for the respondent. 9. Learned counsel for the petitioners submitted that the court below has seriously erred in holding that no prejudice will be W.P.(C) No. 7829 of 2010 6 caused to the parties by an order of joint trial. The learned counsel for the petitioners submitted that in the divorce case the 1st petitioner has to give evidence in person and he will get leave only in August 2010, whereas in O.P. No. 1254 of 2008 the second petitioner has adduced evidence relating to material aspects for deciding Guardian ship and custody of the minor. The learned counsel for the respondent supported the Ext.P2 order. 10. The respondent produced copies of the petitions and objections filed in O.P. No. 1254 of 2008 and O.P. No. 1010 of 2009 pending before the Family Court, Alappuzha. A perusal of these documents would show that the facts pleaded in both the petitions is almost identical and parties to both proceedings are substantially one and the same and nature of the contentions are also one and the same. Ordinary joint trial is within the discretion of the Family court. The main question to be considered while ordering joint trial is, as to whether there is identity of the parties in both these matters, whether there is identity of cause of action and whether the nature of evidence to be adduced is identical. On W.P.(C) No. 7829 of 2010 7 going through the pleadings in both the O.Ps pending before the Family court Alappuzha, we are of the view that there is no jurisdictional error or perversity in Ext.P2 order. Therefore this Writ Petition is liable to be dismissed as it is without any merits. Accordingly this Writ Petition is dismissed. However we direct Family court to post both these cases for evidence in August 2010, as requested by the writ petitioners. K.M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/