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 28TH JANUARY 2011 / 8TH MAGHA 1932 OP (FC).No. 393 of 2011(R) -------------------------- AGAINST THE ORDER DATED 01/01/2011 IN IA.124/10,3360/10 IN OPGW.67/2010 of FAMILY COURT,KOLLAM .................... PETITIONERS: -------------------- 1. THANKACHAN,S/O.YOHANNAN, ANJALI, NEAR TALUK OFFICE, VADAKKUMBHAGOM, KOLLAM EAST VILLAGE, KOLLAM. 2. JESSY THANKACHAN, W/O.THANKACHAN, ANJALI, NEAR TALUK OFFICE, VADAKKUMBHAGOM, KOLLAM EAST VILLAGE, KOLLAM. 3. DR. SEEMA GEORGE,D/O.THANKACHAN, ANJALI, NEAR TALUK OFFICE, VADAKKUMBHAGOM, KOLLAM EAST VILLAGE, KOLLAM. BY ADV. SRI.B.MOHANLAL SRI.SAIJU S. RESPONDENT: --------------- ANEESH GEORGE S/O.M.G.GEORGE, MANACKAMMANNIL VILLA, KNJATTOOR, KULANADA PO, PANDALAM, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT PIN-689 503. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(FC).No. 393 of 2011 R - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2011 JUDGMENT Joseph, J. The petitioners have approached this Court feeling aggrieved by the orders, Exts.P3 and P6, passed in I.A.Nos. 124 of 2010 and 3360 of 2010 in O.P.(G&W) No.67 of 2010 on the file of the Family Court, Kollam. The Family Court passed an order in I.A.No. 124 of 2010 on 13.8.2010 directing the petitioners to give interim custody of the elder ward Alwin from 11 a.m. on the last Saturday of every month till 8 a.m. on the next day and to give interim custody of the younger ward Kevin to the respondent for a period of two hours from 11 a.m. on the last Saturday of every month. 2. The petitioners filed Ext.P4, I.A.No. 3360 of 2010, which purports to be an application to review Ext.P3 order. The respondent also filed a petition, I.A.No.3032 of 2010, for O.P.(FC).No. 393 of 2011 2 the custody of the children during vacation. Both these petitions were considered together and by Ext.P6 common order, the Family Court rejected Ext.P4 application filed by the writ petitioners seeking review of the order and disposed of the petition filed by the respondent directing the petitioners to give custody of Alwin George from 11 a.m. till 3 p.m. on 2.1.2011. It is further ordered that Ext.P3 order will continue till disposal of the Original Petition. Learned counsel for the petitioners submits that Exts.P3 and P6 orders are passed contrary to the provisions of the Guardian and Wards Act, Code of Civil Procedure and the Family Court Act. 3. Heard learned counsel for the petitioners, Shri Mohan Lal. The learned counsel would submit that there is violation of Ext.P3 order in so far as the custody of the minor children was not handed over back to the petitioners as was directed in Ext.P3. He would further submit that under the Guardian and Wards Act, visitation right may be granted to the parents, but the court should not have allowed custody of the elder child as ordered. O.P.(FC).No. 393 of 2011 3 4. The petitioners filed Ext.P4 application to review Ext.P3 order. An order can be reviewed essentially on an error apparent on the face of the record. This is a case where the petitioners seek to challenge Ext.P3 order itself. They were ready to implement the said order and actually proceeded to comply with the order also. Subsequent development in the form of the conduct of the respondent may not warrant re-visiting of the entire issue by the court. 5. We must notice certain facts. The children in question are aged 5½ years and 1½ years. The Family Court has taken care to see that the interim custody remains with the mother, except for a period of few hours on the last Saturday of every month in the court premises in respect of the younger son. We see absolutely no basis for impugning such an order. In fact the petitioners have also no quarrel about it. In the case of the elder child, the father is permitted to take the child for a period of less than 24 hours. We do not see how such an order can be said to be against the interest of the minors as the paramount consideration must be the welfare of the minors. It is O.P.(FC).No. 393 of 2011 4 important that a five year old child must interact with both his parents. In view of the unfortunate circumstances of the case, interaction with the father is limited to a period of less than a day in a month. We see no jurisdictional infirmity in the passing of Ext.P3 order. 6. As far as Ext.P6 order rejecting the review application is concerned also, it may be true as contended by the counsel for the petitioners, that there is no specific finding. But we do not see any illegality or lack of jurisdiction in the Court rejecting the application for review, which is an interlocutary order. 7. Having regard to the totality of facts and circumstances, we see no reason to interfere with Exts.P3 and P6 orders passed. We do not see any merit in the contentions of the learned counsel for the petitioners that it is contrary to the provisions of the Guardian and Wards Act. The Act does not stand in the way of the Court granting interim custody, wherein there is a petition seeking permanent custody of a child by a parent. What is of paramount interest is the welfare of O.P.(FC).No. 393 of 2011 5 the child and granting custody of the child to one parent for a period cannot be said to be contrary to the provisions of the Act. 8. Having regard to the facts and circumstances of the case, this Original Petition is liable to be dismissed. It is submitted by the learned counsel for the petitioners that pleading in the O.P. 67 of 2010 before the Family Court, Kollam are complete. Therefore we direct the Family Court, Kollam to dispose of the said Original Petition at the earliest. 9. Subject to the same, the Original Petition is dismissed. (K.M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm