IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 MFA.No. 396 of 1998() --------------------- OPG&W.609/1993 of FAMILY COURT,TRIVANDRUM .................... APPELLANTS: ----------- 1. A.C.RAJA SUNDARAM C/O AUGUSTINE CINNASWAMY (RETD. TEACHER) (VIA) CHINNAMANNOOR, MADURAI DISTRICT NOW WORKING AS ASST. COMMANDANT CISF UNIT, KATESWAR MINES P.O, BARHI , JABALPUR 2. P.AUGUSTINE CHINNASWAMY (RETD. TEACHER) VELLAIMANAPURAM -626 540 (VIA) CHANNAMANNOOR MADURAI DISTRICT BY ADV. SMT.MUMTAZ SHAMSUDDIN RESPONDENTS: ----------------- T.SARA EDAMALA PUTHEN VEEDU KARUPPURU VILLAGE NEDUMANGADU, TRIVANDRUM BY ADV. SRI.L.MOHANAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ------------------------------------------ M.F.A. No. 396 of 1998 ------------------------------------------- Dated this the 14th day of February 2008 JUDGMENT Harun-Ul-Rashid ,J This appeal is directed against the order dated 23-1-1998 in O.P (G & W) 609/1993 on the file of the family court, Thiruvananthapuram. The petitioner in that Original petition has filed that petition for appointing her as the guardian of the minor child and also for getting custody of the child from the 1st respondent . The parties to this appeal are herein after referred to as the petitioner and the respondent as in the O.P (G&W) 609/1992. 2. The petitioner is the mother of the minor child Sundar prakash. The petitioner's case is that the petitioner and the 1st respondent were residing together at Valiyamala and while so, a child was born to them and accordingly the petitioner was driven out from the house. According to her on the 50th day after the delivery the first respondent took away the child from her custody after locking her inside a room with the help of his mother and sister. It is further stated by her that the 1st respondent is not properly looking after the child, that the child requires the love and affection of the mother and therefore she is entitled to the custody of the child. The respondents in the Original petition were M.F.A. No. 396 of 1998 -2- declared exparte. 3. The petitioner was examined as PW1 Exts A1 & A2 were marked on her side. The court below after appreciating the evidence adduced by the petitioner held that the allegations in the petition stands proved through the depositions of PW1 and Exts A1 & A2. . By the impugned judgment the court below passed a decree appointing the petitioner as the guardian of the person of the minor child Sundar prakash and directed the respondents to hand over the child to the petitioner within a period of one month from the date of the judgment. 4. The impugned judgment was challenged by the respondents in this M.F.A who are the appellants. The 1st respondent is the adoptive father and the petitioner is the natural mother of the minor child. It is submitted by the 1st respondent that the natural mother had executed and registered an adoption deed in favour of the adoptive father on 16-6- 1993 agreeing to give the child in adoption to him that the petitioner has never looked after the child since the date of adoption. Though the 1st respondnet had filed objection disputing the claim of the mother of the child, the court below passed an exparte order to give the custody of the minor child to the petitioner on 03/01/1998. So the respondents filed I.A. 40/1998 before the court below for setting aside the exparte order within time with a medical certificate. But the court below dismissed the same. M.F.A. No. 396 of 1998 -3- It is also submitted that without considering I.A. 40/1998 & 41/1998, the court below disposed of the Original petition. 5. We find that the case was decided without considering the contentions of the respondents . The respondents did not chose to prosecute the case and failed to adduce any evidence before the court below. Therefore the court below was not justified in passing the impugned judgment after fully satisfied that the allegations in the petition is stands proved through the deposition of PW1 and Exts A1 & A2. Considering the facts and circumstances, we are of the view that an opportunity shall be given to the respondents/appellants to contest the case on merits 6. In the result, this M.F.A. is allowed. The judgment and decree passed by the court below is set aside. The case is remitted for denovo consideration. The court below shall dispose of the Original Petition within a period of 6 months from the date of receipt of a copy of this judgment. KURIAN JOSEPH, JUDGE HARUN-UL-RASHID, JUDGE es