IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18220 of 2010(R)
1. SUCHITHRA BALAN, D/O. UMAYAMMA,
... Petitioner
2. ARYA .S. NAIR (MINOR)
Vs
1. RAJESH NAIR, S/O. GOPALAKRISHNAN NAIR,
... Respondent
For Petitioner :SRI.S.SURESH BABU
For Respondent :SRI.N.R.SURESH KUMAR
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :06/08/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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W.P(C) No.18220 of 2010
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Dated this the 6th day of August, 2010
JUDGMENT
BASANT, J.
The challenge in this writ petition is against Exts.P3 and P7
orders. The contestants are spouses. The bone of contention is
the custody of a 4 year old girl child born to them. That child, it
is seen, has also been arrayed as petitioner No.2. Petitioner
No.2 is admittedly in the custody of her mother, i.e. petitioner
No.1. O.P.(G&W) No.1237/2009 was filed by the petitioners
herein to declare the first petitioner as the guardian of the
second petitioner and for other ancillary reliefs. While that
O.P.was pending, the respondent/husband/father filed a petition
for interim custody. That I.A.No.688 of 2010 was disposed of by
Ext.P3 order. The said order, which is very short, is extracted
below:
“Petition for interim custody.
Objection not filed. The respondent
counsel is also absent and no representation is
also made.
As the petitioner has no objection the
prayer allowed as follows:
W.P(C) No.18220 of 2010 2
The interim custody of the child Ariya
S.Nair is given to the petitioner on all Sundays
and 7 days on Onam and X mas holidays and 1
month during the mid-summer vacation. The
order shall come into operate from the 1st May
onwards.
No cost.”
2. It is evident from the order that this is an ex parte
order and passed without considering the contentions of the
petitioners herein. First petitioner, therefore, filed a petition to
set aside that ex parte interim order. That petition was
dismissed by the learned Judge of the Family Court with the
following observations.
” Heard both sides and perused the
records. Th averments in para.7 of the affidavit
filed in support of the petition is incorrect.
I have considered and passed order in
I.A.No.688/2010 in the open court. Though
there was an order in the main O.P. to appear
both parties in the Chamber for ascertaining
the possibility of conciliation, the petitioner
herein was absent. Hence not taken up in the
Chamber at the A.N. session but disposed of
the I.A. in the open court at the F.N. session
itself and adjourned the case to 15.6.2010 for
considering the same in the Chamber.”
W.P(C) No.18220 of 2010 3
3. The learned counsel for the petitioner points out that
the reasons given in Ext.P7 extracted above run counter to the
statements in Ext.P3. In Ext.P3, there is evidently no
consideration of the contentions. We are, in these
circumstances, satisfied that Ext.P3 and Ext.P7 deserve to be set
aside and the court below must be directed to dispose of
I.A.No.688/2010 afresh on merits.
4. The learned counsel for the respondent submits that
O.P.(G&W) No.1237/2009 has already been dismissed. In fact,
the counsel points out that the said O.P.was dismissed on
10/6/2010, the date on which this writ petition was filed. The
learned counsel for the petitioner however submits that an
application for restoration of O.P.(G&W)No.1237/2009 is
pending.
5. In any view of the mater, we are satisfied that Exts.P3
and P7 deserve to be set aside. If O.P.No.1237/2009 is restored,
the court below shall dispose of I.A.No.688/2010 in
O.P.No.1237/2009 afresh in accordance with law after giving the
1st petitioner herein an opportunity to file fresh objections and to
advance their contentions.
W.P(C) No.18220 of 2010 4
6. This writ petition is, in these circumstances, allowed.
Exts.P3 and P7 are set aside. The court below is directed to
dispose of I.A.No.688/2010 afresh in accordance with law after
giving an opportunity for the petitioners herein to file their
objections (if the same has not already been filed) and after
hearing the arguments of both sides.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
ks/