Jijo Joseph vs Smitha on 22 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 35513 of 2007(S)


1. JIJO JOSEPH, AGED 36 YEARS,
                      ...  Petitioner

                        Vs



1. SMITHA, D/O.P.J.JOSEPH, PAKKATTIL
                       ...       Respondent

                For Petitioner  :SRI.M.RAMASWAMY PILLAI

                For Respondent  :SRI.ISSAC NINAN

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :22/09/2008

 O R D E R
                            P.R.RAMAN &
                  T.R.RAMACHANDRAN NAIR,JJ.
              -------------------------------
                   W.P.(C)NO.35513 OF 2008
             --------------------------------
             Dated this the 22nd day of September, 2008

                              JUDGMENT

Raman,J.

Petitioner is the husband of the respondent and father of the

minor child, Sajin Joseph. O.P.(G&W) was filed by the petitioner

herein before the Family Court, Ernakulam for the custody of the

child, which was ultimately allowed by Ext.P1 order granting

custody to the petitioner herein. That was an ex parte order. The

respondent sought to set aside the same and by the impugned order

the Family Court condoned the delay in filing the application to set

aside the order and after considering the petition to set aside the ex

parte order, it found that the said order is liable to be set aside and

accordingly the applications were allowed on payment/deposit of

Rs.1,000/- to the petitioner herein. Ext.P6 is the said order which is

under challenge. According to the petitioner, there is no cause

shown for the non-appearance of the respondent before the court

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WP(C).No.35513/2007

below on the appointed day on which the ex parte order was passed

and there is also no reason for condonation of delay in filing the

application to set aside the ex parte order.

2. We have heard the parties.

3. Admittedly, the petition for permanent custody of the child

was allowed, which was an ex parte order passed against the wife.

The court below found that the non-appearance of the respondent

on the appointed day was not wilful or deliberate and since the

mother of the child has come forward praying to condone the delay

in filing the application to set aside the ex parte order, an

opportunity can be given to consider the matter on merits; but the

same was allowed on terms. The discretion has thus been exercised

by the court below rightly and we do not think it is liable to be

interfered in a petition under Article 226 of the Constitution of

India. However, at the time during the pendency of the writ

petition the same interim arrangement was made as regards the

interim custody of the child. In continuation of the various orders

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WP(C).No.35513/2007

passed by this Court, we direct that during the pendency of the

proceedings before the Family Court by way of interim

arrangement, the custody of the child shall be continued to be with

the respondent herein. So however, the petitioner will have the

custody of the child and the child to be handed over to the

petitioner on every alternate Saturday at 2 p.m. to be returned on

Sunday at 5 p.m. The child shall be handed over through the sister

of the respondent as was done earlier by the previous orders.

Writ Petition is disposed of as above.

P.R.RAMAN,
Judge.

T.R.RAMACHANDRAN NAIR,
Judge.

kcv.