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 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 4576 of 2009(S) ------------------------- OP.200/2007 of FAMILY COURT, KOZHIKODE .................... PETITIONER(S): --------------- P.G.PRIYAN, AGED 38,S/O.PRABHAVATHIAMMA AND THATTATH GOVINDANKUTTY MENON, PARAMEKAVU DESOM, "DEVIKRIPA", ST.MARY'S COLLEGE ROAD, THRISSUR, REP.BY HIS POWER OF ATTORNEY HOLDER FATHER T.G.GOVINDANKUTTY, AGED 70,S/O.DAMODARA MENON,PARAMEKAVU DESOM,"DEVIKRIPA", ST.MARY'S COLLEGE ROAD, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENT(S): --------------- SUSHAMA.N, D/O.SUDHA & VAKAYIL ARAVINDAKSHAN, FLAT NO.84, BLOCK E, ORCID GARDEN, P V S PARK, GOVINDAPURAM, PO. KOZHIKODE. ADV. SRI.K.RAMACHANDRAN FOR R1 SRI.S.SREEDEV FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF POWER OF ATTORNEY EXECUTED BY P.G. PRIYAN DT. 1.1.2007. EXT.P2 TRUE COPY OF COMPROMISE ENTERED INTO BY THE PETITIONER WITH THE RESPONDENT IN OP 200/07 DT.26.1.07. EXT.P3 TRUE COPY OF IA 2253/08 IN OP NO.200/07 ON THE FILE OF THE FAMILY COURT, KOZHIKODE. EXT.P4 TRUE COPY OF OBJECTIONS FILED BY THE RESPONDENT DT.29.11.08 TO EXT.P2 APPLICATION. EXT.P5 TRUE COPY OF ORDER PASSED IN IA 2253/08 IN OP NO.200/07 DT. 16.12.08 ON THE FILE OF THE FAMILY COURT, KOZHIKODE. RESPONDENTS' EXTS: EXT.R1 TRUE COPY OF THE ORDER OF THE FAMILY COURT, KOZHIKODE IN IA 2254/08 IN OP 200/07 DT.16.12.08. /TRUE COPY/ K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 4576 of 2009 S - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ... day of March, 2010 JUDGMENT Joseph Francis, J. This Writ Petition under Article 227 of the Constitution is filed by the petitioner in I.A. No. 2253 of 2008 in O.P.No. 200 of 2007 on the file of the Family Court, Kozhikode with the following prayers. “i) call for the records leading to Ext.P5 and may be pleased to quash the same. ii) to issue an appropriate writ, order or direction commanding the court below to allow Ext.P3 application slightly modifying the terms in Ext.P2 to the extent it is sought for in Ext.P3 in the interest of justice.” W.P.(C).No. 4576 of 2009 2 2. The case of the petitioner briefly is as follows. The petitioner herein is the father and the respondent is the mother of minor child called Madhav Priyan. O.P. 200 of 2007 is a proceedings instituted by the petitioner herein seeking custody of the minor child. Pending the said Original Petition, the parties entered into a compromise. As per the terms of the compromise, during summer vacation 15 days' custody is provided to the petitioner initially and after an interval of three days, again another 15 days' is provided. For consolidating both the periods so as to make a continuous period of 30 days, an application was filed as Ext.P2. But the court below dismissed the said application as per Ext.P5 order dt. 16.12.2008. Challenging the same, the petitioner filed this Writ Petition. 3. The respondent filed counter affidavit opposing the said prayer. 4. Heard learned counsel for the petitioner and the learned counsel for the respondent. W.P.(C).No. 4576 of 2009 3 5. Learned counsel for the petitioner submitted that Ext.P5 order is patently illegal in so far as the Court below does not apply its mind to the factual aspects involved in the case, as to whether the requirement sought is for the welfare of the minor child or not. Learned counsel for the petitioner further submitted that Ext.P2 compromise was entered into at a time when the child was little above 3 years of age. Learned counsel contended that now the child has grown up and therefore the court below ought to have considered the fact that the petitioner seeks only some slight modification of the arrangement as agreed upon by the petitioner in Ext.P2 compromise. The learned counsel for the respondent supported Ext.P5 order. 6. Admittedly O.P. 200 of 2007 is a proceeding initiated by the petitioner herein under Sections 7 and 25 of the Guardian and Wards Act seeking custody of the minor child of the petitioner and the respondent, named Madhav Priyan. Petitioner is now working abroad in Quatar. Ultimately the proceedings in the court below were settled W.P.(C).No. 4576 of 2009 4 by Ext.P2 compromise entered into by the petitioner and the respondent. As per that compromise, it was decided that concerning the custody of the minor child, viz. Madhav Priyan, every year during summer vacation 15 days initially will be given to the petitioner herein and after an interval of three days another 15 days more will be given to him. Likewise, during Onam and Christmas vacation also such custodian rights were grated to the petitioner. It is an admitted fact that the minor child is residing with his mother at Kozhikode and permanent residence of the petitioner is at Trichur. 7. Learned counsel for the petitioner submitted that the child was very happy with the petitioner and that travelling of about 130 kms. was found to be a very onerous thing and the child was finding it very difficult. Therefore, the petitioner wanted slight modification in the order to the extent that in the place of interval of three days, the same may be changed and continuous custody for a period of 30 days during summer vacation be provided to the petitioner. W.P.(C).No. 4576 of 2009 5 8. Learned counsel for the respondent opposed the said prayer for change in the arrangement and submitted that it was for the welfare of the child that such a condition of three days' interval was provided to meet his mother. Learned counsel for the respondent further submitted that since the terms of compromise was entered into, which was on mutual consent, there cannot be an alteration of the same. The learned Family Court, as per Ext.P5 order, dismissed Ext.P3 petition on the ground that since the petitioner and the respondent entered into an agreement and executed a Razi petition, the conditions therein cannot be modified at this stage. As per Ext.P2 compromise, there is a clause to modify the arrangement regarding the custody of the child during vacation after attaining the age of 8 years by the child. There is no dispute that the minor child has not attained that age at present. 9. The powers under Article 227 of the Constitution does not vest the High Court with unlimited prerogative to correct all species of hardships or wrong decisions made within the limits of the W.P.(C).No. 4576 of 2009 6 jurisdiction of the Court or the Tribunal. Exercise of powers under Article 227 of the Constitution may be necessary if it is shown that grave injustice has been done to a party and the case is a fit case. Since there is no illegality in Ext.P5 order, we are of the view that this Writ Petition is liable to be dismissed, as it is without any merit. 10. Accordingly, this Writ Petition is dismissed. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm