IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 OP (FC).No. 1181 of 2010(R) --------------------------- AGAINST THE ORDER DATED 10/12/2010 IN IA 2899/2010 IN OP.1179/2010 of FAMILY COURT, MALAPPURAM .................... : PETITIONER/IST RESPONDENT --------------------------------------------- NAZER, S/O.MUHAMMED, KALLAN HOUSE, MARAKKARA P.O., MARAKKARA AMSAM, MOORKANADU DESAM, KALPAKANCHERRY, TIRUR TALUK, MALAPPURAM. BY ADV. SRI.A.KRISHNAN RESPONDENTS : PETITIONER & 2ND RESPONDENT ------------------------- 1. SAMEERA, D/O.AHAMMEDKUTTY, CHEMBAN HOUSE, RANDATHANI P.O., KANANCHERRY, TIRUR TALUK. 2. SUHRA, D/O.MUHAMMED, KALLAN HOUSE, MARAKKARA P.O., MARAKKARA AMSAM, MOORKANADU DESAM, KALPAKANCHERRY, TIRUR TALUK, MALAPPURAM. ADV. SRI.K.P.SUDHEER FOR R1 SRI.V.C.MADHAVANKUTTY FOR R1 THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** O.P(F.C) No.1181 of 2010 ***************************** Dated this the 21st day of December, 2010 JUDGMENT BASANT, J. The petitioner has come to this Court aggrieved by Ext.P4 order under which the respondent/mother of the child was permitted to have custody of the 3 year old boy child, born to the contestants for 3 days in a week, ie. from 10 a.m every Monday till the following Thursday. 2. The spouses are blessed with 4 children. The 3 year old boy child in question is the third of the 4 children. The 4th child, aged about 11 months, is in the custody of the respondent/mother. The other 3 children are in the custody of the petitioner/father. It is the case of the petitioner/father that the respondent/mother was guilty of adulterous behaviour. The marital tie has now been dissolved. As per an agreement Ext.P3 stipulations were made regarding the custody of the children. The 3 elder children were permitted to be in the custody of the petitioner with right for the respondent/mother to visit the children at the school. According to the respondent/mother, Ext.P3 is not a voluntary agreement. She was coerced and O.P(F.C) No.1181 of 2010 2 compelled to sign the same. On the basis of that agreement, she was being denied opportunity to interact with her 3 year old minor son involved in this case. It is, in these circumstances, that she went before the Family Court and claimed custody of the child Hisam, the 3 year old minor son. O.P.No.1179 of 2010 is pending before the Family Court. She filed an interim application for custody of that child, pending disposal of the O.P. 3. The husband resisted the claim. He contended that there was no necessity to act in derogation of the stipulations in Ext.P3. According to him, it would be unkind and harsh to separate the minor son Hisam for 3 days a week from the company of the other two elder children. 4. The court below passed Ext.P4 impugned order. The crux of the order is that the mother is entitled to custody of that child for 3 days, ie. Mondays, Tuesdays and Wednesdays of every week. 5. In an attempt to work out harmony, we had directed the spouses to appear with the said child before Court today. We interacted with the spouses. Their counsel were also present. We find that they have not been able to come to any harmonious settlement. O.P(F.C) No.1181 of 2010 3 6. The short question that arises for consideration is whether the impugned order deserves to be interfered with, pending disposal of the O.P. We are satisfied that the impugned order caters to the ends of justice eminently. The child is aged 3 years and undoubtedly he needs the affection and care of the mother. There is an allegation that the wife is guilty of adulterous behaviour. Both have remarried. We are, in these circumstances, satisfied that the impugned order does not warrant interference. We are not persuaded to invoke our extraordinary constitutional jurisdiction of superintendence and correction under Article 227 to interfere with the impugned order. 7. We are informed that though the Family Court had directed that the arrangement must start from 13.12.2010, the child has not been handed over on the week starting with 13.12.2010 or the week starting with 20.12.2010. We had permitted the child to be in the custody of the respondent/mother during the pre lunch session today. We are now satisfied that directions can be issued to strictly comply with the impugned order from Monday (27.12.2010) onwards. On that day, at 10 a.m, the petitioner shall produce the child before O.P(F.C) No.1181 of 2010 4 the Family Court. The child shall be returned at 10 a.m on Thursday at the same venue. 8. This O.P is, in these circumstances, dismissed. The impugned order is upheld. The petitioner shall produce the child before the Family Court on all Mondays from 27.12.2010 in accordance with the directions in the impugned order. 9. We are satisfied that there must be a direction for expeditious disposal of O.P.No.1179 of 2010 by the Family Court. We expect the Family Court to dispose of O.P.No.1179 of 2010 in accordance with law, as expeditiously as possible - at any rate, by 15.03.2011. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ O.P(F.C) No.1181 of 2010 5 O.P(F.C) No.1181 of 2010 6 R.BASANT & K.SURENDRA MOHAN, JJ. *********************** O.P(F.C) No.1181 of 2010 ***************************** Dated this the 17th day of December, 2010 ORDER BASANT, J. Heard. Admitted. Issue notice to the 1st respondent. 2nd respondent is the sister of the petitioner. It is agreed that notice need not go to her now. The learned counsel for the petitioner prays and is accordingly permitted to take out notice to the 1st respondent by special messenger. 2. Call on 21.12.2010. The petitioner and the 1st respondent shall appear before this Court on that day. The child shall be produced before Court. 3. There shall be an interim stay of the impugned order till 21.12.2010. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ O.P(F.C) No.1181 of 2010 7