IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 35513 of 2007(S) -------------------------- AGAINST THE ORDER DATED 8/10/2007 IN IA 3385/07 IN OPG&W.1154/2006 OF THE FAMILY COURT,ERNAKULAM .................... PETITIONER: ------------------- JIJO JOSEPH, AGED 36 YEARS, S/O.V.J.JOSEPH, VADAKKEMANIYANKUNNEL HOUSE, BRAHMAMANGALAM P.O., BRAHMAMANGALAM KARA, CHEMPU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENT: -------------------- SMITHA, D/O.P.J.JOSEPH, PAKKATTIL HOUSE, (VELLAPPALIL), PIRAVOM P.O., PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK. ADV. SRI.ISSAC NINAN SRI.RAJESH KUMAR.T.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.35513/2007 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ORDER DTD. 14/3/07 IN THE ORIGINAL PETITION. EXT.P2 TRUE COPY OF THE I.A.NO.3385/07 FILED BY THE RESPONDENT FOR CONDONING THE DELAY. EXT.P3 TRUE COPY OF THE I.A.NO.3386/07 FILED BY THE RESPONDENT TO SET ASIDE THE EX PARTE ORDER. EXT.P4 TRUE COPY OF THE COUNTER IN I.A.NO.3385/07. EXT.P5 TRUE ;COPY OF THE COUNTER IN I.A.NO.3386/07. EXT.P6 TRUE COPY OF THE COMMON ORDER DTD. 8/10/07 IN I.A.NOS.3385 & 33986/07. P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- W.P.(C)NO.35513 OF 2008 -------------------------------- Dated this the 22nd day of September, 2008 JUDGMENT Raman,J. Petitioner is the husband of the respondent and father of the minor child, Sajin Joseph. O.P.(G&W) was filed by the petitioner herein before the Family Court, Ernakulam for the custody of the child, which was ultimately allowed by Ext.P1 order granting custody to the petitioner herein. That was an ex parte order. The respondent sought to set aside the same and by the impugned order the Family Court condoned the delay in filing the application to set aside the order and after considering the petition to set aside the ex parte order, it found that the said order is liable to be set aside and accordingly the applications were allowed on payment/deposit of Rs.1,000/- to the petitioner herein. Ext.P6 is the said order which is under challenge. According to the petitioner, there is no cause shown for the non-appearance of the respondent before the court -2- WP(C).No.35513/2007 below on the appointed day on which the ex parte order was passed and there is also no reason for condonation of delay in filing the application to set aside the ex parte order. 2. We have heard the parties. 3. Admittedly, the petition for permanent custody of the child was allowed, which was an ex parte order passed against the wife. The court below found that the non-appearance of the respondent on the appointed day was not wilful or deliberate and since the mother of the child has come forward praying to condone the delay in filing the application to set aside the ex parte order, an opportunity can be given to consider the matter on merits; but the same was allowed on terms. The discretion has thus been exercised by the court below rightly and we do not think it is liable to be interfered in a petition under Article 226 of the Constitution of India. However, at the time during the pendency of the writ petition the same interim arrangement was made as regards the interim custody of the child. In continuation of the various orders -3- WP(C).No.35513/2007 passed by this Court, we direct that during the pendency of the proceedings before the Family Court by way of interim arrangement, the custody of the child shall be continued to be with the respondent herein. So however, the petitioner will have the custody of the child and the child to be handed over to the petitioner on every alternate Saturday at 2 p.m. to be returned on Sunday at 5 p.m. The child shall be handed over through the sister of the respondent as was done earlier by the previous orders. Writ Petition is disposed of as above. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.