IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WP(C).No. 9367 of 2010(R) ------------------------- AGAINST THE ORDER DATED 10/03/2010 IN IA 303/2010 IN OP.385/2009 of FAMILY COURT, MALAPPURAM .................... PETITIONER: --------------- ANDANAKATH JAMSHEERA, AGED 26 YEARS, W/O. JAFAR, KURIKKALAKATH HOUSE, MANATHALA AMSOM, PALLITHAZHAM, CHAVAKKAD TALUK, CHAVAKKAD.P.O., THRISSUR DISTRICT. BY ADV. SRI.K.SHIBILI NAHA RESPONDENT: --------------- AFSAL REPRESENTD BY POWER OF ATTORNEY HOLDER, MARIYAKUTTY, W/O. HAMZA, CHEMPAKASSERI HOUSE, PONNANI TLUK, KALADI AMSOM DESOM. NOW RESIDING AT THALAMUNDA, EDAPPAL, PONNANI TALUK. ADV. SRI.C.V.MANUVILSAN FOR R1 SRI.P.G.SURESH FOR R1 SMT.K.VIDYA FOR R1 SRI.M.R.VIBIN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON 29/03/2010 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(C) No.9367 of 2010-R ---------------------------------------------- Dated, this the 29th day of March, 2010 J U D G M E N T K.M.Joseph, J. Petitioner challenges Exts.P5 and P8 orders. The petitioner married the respondent on 18.5.2003 and a son was born in the wedlock. They lived together as husband and wife till 11.09.2007. Their matrimonial relationship was brought to an end by pronouncing talaq on 8.11.2007. It is stated that the parties had executed a karar on 13.11.2007 pursuant to divorce. It is stated that regarding the custody of the child there was an application filed under Section 10 and 25 of the Guardian and Wards Act. The petitioner was set exparte and the custody of the child was directed to be handed over to the father. It is stated that the petitioner had been taking care of the welfare and education of the child ever since their separation. It is stated that petitioner filed application to set aside the exparte order. The respondent also filed application to execute the exparte order. The Family Court proceeded to WPC No.9367/2010 -2- pass orders directing to hand over the custody of the child to the respondent/father. Aggrieved by the same the petitioner had approached this Court. This Court called a report from the Family Court and directed the Family Court to dispose of the application to set aside the exparte order within 3 days from 9.10.2009. As per the interim arrangement suggested by the respondent it was agreed to hand over the custody of the child to the respondent father and the petitioner was given liberty to have the custody of the minor from Saturdays to Mondays every week. A joint statement (Ext.P4) was also filed incorporating this interim arrangement till 7.4.2010. Petitioner filed an application to modify the terms of Ext.P4. Respondent also filed application stating that since he has to go abroad his mother and sister would look after the child. The Family Court disposed of both the applications holding that there is no change in circumstances to vary from Ext.P4. Both sides were directed to strictly comply with the terms of Ext.P4 by Ext.P5 order. It is submitted that the child was not willing to go back with his father after the last week of January, 2010. It is stated that the mother of the WPC No.9367/2010 -3- respondent moved the Family Court complaining that the petitioner had violated Ext.P4 terms and sought for getting custody of the minor from the mother. By Ext.P8 order the Family Court directed the petitioner to hand over the custody of the child to the paternal grand mother and held that the petitioner will not be entitled to have the custody of the child 2 days a week in terms of Ext.P4. Aggrieved by the said order of the Family Court, petitioner has approached this Court. 2. We heard the learned counsel for the petitioner and learned counsel for the respondent. We called a report from the Family Court. It is reported that the order dated 10.3.2010 based on Ext.P4 statement is an arrangement as agreed to, to hold till 7.4.2010 and that the OP is disposed of. It is further reported that if parties want further directions, they can move a petition for the purpose in that case itself. The period mentioned in Ext.P4 will come to an end on 7.4.2010. Having regard to all the circumstance, we do not think that it may be appropriate for this Court to interfere with Ext.P5 and P8 orders. We direct that the petitioner will hand over the minor child to the respondent on 7.4.2010 between WPC No.9367/2010 -4- 11 A.M and 12 Noon in the Family Court, Malappuram, and that the respondent can keep custody of the child till 23.4.2010. On the said day the respondent shall hand over custody of the child to the petitioner in the Family Court, Malappuram between 11 A.M and 12 Noon. The writ petition is disposed of as above. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. Pm/MS.