IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 WP(C).No. 31128 of 2008(S) -------------------------- OP.G&W.201/2008 of FAMILY COURT,KOLLAM .................... PETITIONER(S): --------------- SHAJAHAN, S/O.SHAHUL HAMEED, THATTANTAZHIKAM VEEDU, PERAYAM-UMAYANELLORE P.O. THAZHUTHALA VILLAGE, KOLLAM. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN RESPONDENT(S): --------------- 1. LATHEEFA, D/O.HASANARKUNJU, POORAMBANKADU VEEDU, KONGAL-PARAVOOR P.O., KOLLAM. 2. MARIYAM BEEVI, POORAMBANKADU VEEDU, KONGAL-PARAVOOR P.O., KOLLAM. 3. SUB INSPECTOR OF POLICE, PARAVOOR. ADV. SRI.S.BIJU (KIZHAKKANELA) FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31128 of 2008(S) A P P E N D I X PETITIONER'S EXTS: EXT.P1 TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOLLAM DATED 04/03/2008 EXT.P2 TRUE COPY OF THE ORDER DATED 31/03/2008 IN I.A.NO.502/2008. EXT.P3 TRUE COPY OF THE PETITION DATED 04/10/2008 FILED BEFORE THE SUB INSPECTOR OF POLICE KOTTIYAM. EXT.P4 TRUE COPY OF I.A.NO.2484/2008 IN O.P.(G&W)NO.201/2008 OF FAMILY COURT, KOLLAM DATED 16/10/2008. EXT.P5 TRUE COPY OF THE I.A.NO.2483/2008 IN O.P.(G&W) NO.201/2008 OF FAMILY COURT, KOLLAM DATED 16/10/2008. EXT.P6 TRUE COPY OF CERTIFICATE ISSUED BY THE H.M. OF THE SCHOOL WHEREIN THE PETITIONER'S CHILDREN ARE STUDYING. \\TRUE COPY// P.A TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No.31128/2008-S ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11th day of November, 2008. J U D G M E N T Raman, J. Shajahan, the petitioner had filed O.P.(G&W) No.201/2008 before the Family Court, Kollam for custody of the minor children born to him through the first respondent (Ext.P1). The petitioner filed I.A.No.502/2008 seeking interim custody of the children. The court below allowed the I.A more so, because the respondent wife was absent and she was declared ex parte. That order is produced as Ext.P2. As per the said order, interim custody of the children was given to the petitioner herein. But, subsequently, it appears that the parties compromised and started living together. As a result, there was no need felt to prosecute the main O.P pending before the Family Court, which was eventually dismissed for default. But the contention of the petitioner is that soon thereafter the wife again left the house with the children as a result of which it has become necessary to prosecute the case and he has filed an application for setting aside the order dismissing the case for default and also for restoration of the case to the file. Since the application was belated, he had also filed an application for condonation of the delay. Exts.P4 and P5 are the applications so filed. The Family Court has posted the said two petitions for hearing on 23/12/2008. W.P.(C) No.31128/2008 -:2:- Praying that in such circumstances until the matter is finally disposed of by the Family Court, interim custody of the children be granted to the petitioner that this writ petition is filed. 2. Efforts were made to bring out a settlement between the parties which, however, failed. Even today, the parties were directed to appear before this Court and we interacted with them and their children, we also had a discussion with their counsel. After interaction, we find that a settlement could not be reached and as such an adjudication over the right of the parties for custody of the minor children has to be made by the Family Court. In the absence of any order on merits it is agreed by the parties that Ext.P2 can be set aside and Exts.P4 and P5 can be allowed and main O.P restored to file. Accordingly, Exts.P4 and P5 will stand allowed and fresh orders will be passed in I.A.No.502/2008. The parties shall appear before the Family Court on 25/11/2008. It is open to the respondents herein to file counter affidavit in I.A.No.502/2008, sufficiently early, so that the court could dispose of the I.A. expeditiously. This writ petition is disposed of as above. (P.R. Raman, Judge.) (T.R. Ramachandran Nair, Judge.) ms