IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 Mat.Appeal.No. 7 of 2011(A) --------------------------- O.P.NO.553/09 OF FAMILY COURT, MALAPPURAM PETITIONER(S): PETITIONER ------------------------- RANJINI A.K., D/O.RAMAN, AREEKKODAN HOUSE, ODIYANCHOLA, EDAKKARA P.O., MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENT ------------------------- RAJAN, S/O.GANAPATHI, THRUPPANACHI HOUSE, THANDUPARAKKAL, P.O.VANDOOR, MALAPPURAM DISTRICT, PIN-679328. ADV. SRI.SATHYANATHA MENON FOR R(B/O) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.7 of 2011 ---------------------------------------- Dated this the 11th day of January 2011 J U D G M E N T K.M.JOSEPH,J The appellant is the wife of the respondent. She seeks to challenge the common order passed in I.A.No.1896/2010 in O.P.No.553/2009. O.P.No.553/2009 is filed by the respondent for custody of the minor children and the same was allowed vide Annexure B order on a joint statement filed by both parties, stating that custody of the children can be granted to the respondent. It is the case of the appellant that when the custody of the children were handed over to the respondent, he had harassed the children and all the three children ran away from the house of the respondent/father and were found wandering through the street, from where, Child Welfare Committee, Malappuram took the children and after hearing the children sent along with the grand mother considering the welfare of the children. The order is produced as Annexure C. The children are totally unprepared to go with the father. Mat.Appeal No.7 of 2011 2 2. According to the appellant, the appellant filed W.P.C.No.22179/2010 to quash the consent order in Annexure B. The same was disposed of by Annexure A wherein the court relegated the appellant to approach the Family Court to file a fresh petition. Accordingly I.A.No.1896/2010 was filed by the appellant. The appellant also filed I.A.No.1879/2010 for staying the proceedings pursuant to Annexure B order. The respondent filed I.A.No.1664/2010 for a direction to the appellant to comply with Annexure B order. All the three applications were considered and a common order was passed for which the appellant has chosen to challenge the order passed in I.A.No.1896/2010. The learned counsel for the respondent would contend that the I.A itself is not maintainable. 3. We have heard the learned counsel for the appellant and the learned counsel for the respondent. In the impugned order, the Family Court has noted at paragraph 5 that though the I.As were posted for evidence, the mother has submitted that she has no evidence to adduce either oral or documentary in these three IAs and the father has produced and marked Exts.B1 to B7. According to the appellant, the matter was not posted for evidence. We called for the report from the Family Court. It is Mat.Appeal No.7 of 2011 3 inter alia stated that I.As were posted for enquiry. Both sides were heard and posted for orders on 30/12/2010 and thus, there was no specific posting for evidence. This is the report which is submitted by the Sheristadar after verification. In the nature of the case, we feel that an opportunity can be given to the appellant for adducing whatever evidence the appellant wants to adduce. However, we feel that the matter should also be disposed of at the earliest. 4. Accordingly, the impugned order in I.A.No.1896/2010 in O.P.No.553/2009 of the Family Court, Malappuram is set aside. The parties shall appear before the Family Court, Malappuram on 15/01/2011. The court shall take up I.A.No.1896/2010 and the parties shall be permitted to adduce such evidence as they are advised to. The matter shall be disposed of within a period of two weeks from 15/01/2011. We further make it clear that it will be open to the respondent also to contend that the I.A itself is not maintainable. (K.M.JOSEPH, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Mat.Appeal No.7 of 2011 4 Mat.Appeal No.7 of 2011 5 Mat.Appeal No.7 of 2011 6 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010