IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 22179 of 2010(R) -------------------------- PETITIONER: --------------- RANJINI A.K, D/O.RAMAN, AREEKODAN HOUSE, ODIYAN CHOLA, EDAKKARA POST, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: --------------- RAJAN, S/O.GANAPATHI, THRUPPANACHI HOUSE, THANDUPARAKKAL, WANDOOR.P.O, WANDOOR AMSOM, DESOM, NILAMBUR, MALAPPURAM DISTRICT, PIN-679 328. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(C) No.22179 of 2010 ********************* Dated this the 14th day of July, 2010 JUDGMENT BASANT, J. The petitioner has come to this Court with this Writ Petition to challenge Ext.P3 consent order passed by the Family Court. 2. The petitioner and the respondent are spouses. The spouses have a strained relationship and they are residing separately. There are 3 children born in the wedlock. They are said to be aged 16, 12 and 6 years. The eldest daughter Rehna is aged 16 years, second son Rahul is aged 12 years and the youngest child Rathul is aged 7 years. The children were residing with the mother. 3. While so, the husband, ie. the respondent herein filed O.P.No.553 of 2009 for custody of the second son Rahul, aged 12 years. It is submitted at the bar that the respondent had filed an application for restitution of conjugal rights also. The learned counsel for the petitioner submits that the decree for restitution of conjugal rights was granted in favour of the respondent on merits. When O.P.No.553 of 2009 came up for consideration, a W.P(C) No.22179/2010 2 joint statement was filed by the spouses. Ext.P2 is the copy of the joint statement. As per the said joint statement, all the 3 children were agreed to be handed over to the respondent/father. Accordingly the impugned order Ext.P3 was passed. 4. At the bar it is submitted that later the husband had filed applications to execute the consent order passed in O.P.No.553 of 2009. The children were allegedly handed over to the husband finally. According to the petitioner though the 3 children were taken to the house of the respondent, the children went away from the house and were traced later on the road. The 3 children were produced before the Child Welfare Committee and the Committee directed that the children be handed over to the custody of the maternal grandmother of the children. Accordingly Ext.P6 order was passed by the Child Welfare Committee. Hence the children are now with the maternal grandmother of the children, who interestingly is residing with the petitioner herein. 5. It is at this juncture that the petitioner has come to this Court with this Writ Petition. What is the grievance of the petitioner? W.P(C) No.22179/2010 3 6. The learned counsel for the petitioner submits that Ext.P3 order deserves to be set aside. That order is a consent order. No reasons have been shown to justify the prayer to entertain a challenge against Ext.P3 order. It is a consent order and is not appealable. Nothing has been shown to exist which would justify the invocation of the extraordinary constitutional jurisdiction under Article 227 to interfere with that order. In these circumstances, this Writ Petition can only be dismissed. 7. The learned counsel for the petitioner submits that the Court may alertly take note of the very pathetic and unfortunate plight of the children and the petitioner herein. The children did not go with the father despite orders passed by the court. At long last they were forcibly handed over to the father. But the father could not keep them in his custody. According to the petitioner, the children did not go to school after they were handed over to the father. It is under such circumstances that on the basis of the report of the Child Line, the Child Welfare Committee proceeded to pass Ext.P6 order. 8. All the subsequent events cannot justify a challenge against Ext.P3 order. The proper course for the petitioner would be to approach the Family Court with a fresh request to modify W.P(C) No.22179/2010 4 the order regarding custody. Needless to say, if such an application is filed, the Family Court shall have to consider the same and dispose of the same in accordance with law. 9. The petitioner raises an apprehension that the custody of the children with her (technically with her mother) may be interfered with by the father by filing a fresh application for custody of the children. The petitioner apprehends that such an application has already been filed. It is certainly for the petitioner to appear before the Family Court and place before the Family Court all the relevant facts. We have no reason to assume that the Family Court shall not consider such petition to be filed by the petitioner on merits or shall hand over the children straightaway to the respondent without considering the contentions of the petitioner. 10. In these circumstances, this Writ Petition is dismissed as not maintainable, but with the observation that it shall be open to the petitioner to file a fresh application before the Family Court showing all relevant circumstances to pray for modification of Ext.P3 order passed in O.P.No.553 of 2009 and to pass fresh orders regarding custody modifying Ext.P3. If any application is filed for execution of Ext.P3 order also, the W.P(C) No.22179/2010 5 petitioner shall be at liberty to raise all contentions and place all relevant circumstances before the Family Court. We have no reason to assume that the Family Court shall lightly and without considering all the relevant circumstances including the order passed by the Child Welfare Committee disturb the custody of the children, who are now with the maternal grandmother as per Ext.P6 order. 11. We may hasten to observe that we have not intended to express any final opinion about the merits of the relative claims for custody. We intend only to observe that the petitioner's remedy is not by filing a Writ Petition against Ext.P3 order. She must seek appropriate further relief from the Family Court and the Family Court, needles to say, shall have to consider such prayer and pass appropriate orders on merits. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/ W.P(C) No.22179/2010 6 R.BASANT & M.C.HARI RANI, JJ. ********************** Unnumbered W.P(C) of 2010 ********************* Dated this the 14th day of July, 2010 O R D E R BASANT, J. Number the Writ Petition subject to later orders on maintainability. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/