IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 303 of 2009()
1. R.JAYAN, S/O.P.RAVEENDRAN NAIR,
... Petitioner
Vs
1. P.JAYASREE, D/O.M.G.PARAMESWARA PANICKAR
... Respondent
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.THOMAS ABRAHAM
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :27/10/2010
O R D E R
R. BASANT &
M.L. JOSEPH FRANCIS, JJ.
-------------------------------------------------
Mat. Appeal No. 303 of 2009-C
-------------------------------------------------
Dated this the 27th day of October, 2010
JUDGMENT
Basant,J.
This appeal is preferred by the appellant – father of a minor
female child aged above 7 years aggrieved by the rejection of his
petition for custody of his daughter. When the appeal was filed,
the child was in the custody of the original respondent i.e., the
mother of the child. During the pendency of this appeal, the
mother of the child expired and the child continued to be in the
custody of the additional 2nd respondent i.e., the maternal
grandfather of the child. Interim arrangements regarding
custody were sought and this Court by order dated 18/8/09 as
modified by order dated 30/9/09 has made arrangements to
ensure the visitorial rights of the appellant i.e., the father of the
Mat. Appeal No. 303 of 2009-C
-: 2 :-
child. That arrangement has been continuing in force.
Directions were issued from time to time regarding custody of
the child during intervening vacations also.
2. We have heard both counsel on merits in the appeal.
The dispute now is as to whether the child must continue in the
custody of the maternal grandfather i.e., the additional 2nd
respondent or must be left in the custody of the father of the
child i.e., the appellant.
3. On this crucial aspect we find no evidence has been
adduced by either side before the court below. The impugned
order is one passed along with several other connected matters
all of which have now become irrelevant. On the precise
question that arises for determination in this appeal now we
found that there is crucial and vital lack of evidence/materials.
We requested the counsel and they also accepted that there is
need to adduce evidence on the disputed questions for a proper
consideration and disposal of the issue that has been raised in
this appeal now.
4. Accordingly, as directed by us, both sides have filed
affidavits in lieu of chief-examination of the witnesses whom
they want to examine. Both sides have also produced
documents in support of their respective contentions. Both
Mat. Appeal No. 303 of 2009-C
-: 3 :-
counsel now agree that they do not want to adduce any further
evidence than the chief affidavits and the documents produced.
However, both sides request that the deponents/witnesses who
have filed chief affidavits may be permitted to be cross-
examined
5. We are satisfied that for proper consideration and
disposal of the issues raised in this appeal, which were not
contemplated at the time when the court below passed the
impugned order, parties must be permitted to adduce proper
evidence.
6. What course is to be followed by this Court is the next
question. The learned counsel for the appellant submits that
the court below may be directed to record the evidence in cross-
examination and on the basis of such materials, this Court may
dispose of the appeal. That would mean that virtually on new
materials the appellate court will have to take a decision.
Having rendered our anxious consideration to the issue, we are
satisfied that the appropriate and ideal course to be followed is
to direct the court below to dispose of O.P.No.458/07 afresh in
accordance with law after considering the materials which the
appellant/father of the child and the additional 2nd respondent –
the maternal grand father of the child want to rely on. The
Mat. Appeal No. 303 of 2009-C
-: 4 :-
court below, we are satisfied, must be directed to dispose of the
matter afresh on the materials after due cross-examination of
the deponents/witnesses. Aggrieved party can later come before
this Court, if necessary. We are further satisfied that the court
below must be given time bound directions to dispose of
O.P.458/07 afresh. We are further satisfied that the interim
arrangement stipulated as per the orders dated 18/8/09 and
30/9/09 must continue to remain in force until O.P.No.458/07 is
disposed of afresh.
7. In the result:
(a) This appeal is allowed in part.
(b) The impugned order is set aside.
(c) The court below is directed to dispose of O.P.No.458/07
afresh on merits in accordance with law considering the nature
of the contentions which the appellant and the additional 2nd
respondent herein want to advance.
(d) As agreed by both sides, we direct that the evidence
placed before this Court in the form of affidavits in lieu of chief-
examination of the witnesses and the documents produced alone
need be considered as additional evidence by the court below, of
course, after giving parties opportunity to cross-examine the
deponents/witnesses.
Mat. Appeal No. 303 of 2009-C
-: 5 :-
(e) The parties shall appear before the court below on
15/11/10. The court below shall proceed with the matter day-
to-day and shall dispose of the case as expeditiously as possible –
at any rate, prior to 10/12/10. Compliance shall be reported to
this Court.
8. The Registry shall forthwith send back the records
including the oral and documentary evidence placed before this
Court by the rival contestants in the form of affidavits in chief
and documents. They must reach the Family Court prior to
15/11/10.
Sd/-
R. BASANT
(Judge)
Sd/-
M.L. JOSEPH FRANCIS
(Judge)
Nan/
//true copy//
P.S. to Judge
Mat. Appeal No. 303 of 2009-C
-: 6 :-
R. BASANT &
M.L. JOSEPH FRANCIS, JJ.
————————————————-
Mat. Appeal No. 303 of 2009-C
————————————————-
Dated this the 8th day of October, 2010
ORDER
Basant,J.
We have heard both counsel. The learned counsel for the
appellant prays that time may be granted to the appellant to
adduce further evidence under Order 41 Rule 27 in the form of
affidavits of witnesses. We do certainly feel that further
evidence may be necessary to resolve the controversy between
the parties. In these circumstances, we permit both sides to file
whatever further evidence they want to adduce of witnesses in
the form of chief-affidavits before this Court by the next date of
posting. Parties can request that such affidavits be received in
evidence under Order 41 Rule 27 in view of the changed
Mat. Appeal No. 303 of 2009-C
-: 7 :-
circumstances.
2. Call on 18/10/10.
R. BASANT
(Judge)
M.L. JOSEPH FRANCIS
(Judge)
Nan/
Mat. Appeal No. 303 of 2009-C
-: 8 :-
R. BASANT &
M.C. HARI RANI, JJ.
————————————————-
Mat. Appeal No. 303 of 2009-C
————————————————-
Dated this the 24th day of July, 2009
ORDER
Basant,J.
The parties were referred to a Mediator; but after lunch,
the Mediator has sent back a failure report to inform us that the
mediation has not succeeded.
2. Parties are assisted by sublime counsel and the learned
counsel agreed that it will be worthwhile for the Court to further
pursue the efforts for a harmonious settlement. We have
therefore interacted with the parties separately and together
and in the presence of their counsel. We are happy to record
that the parties have now come to some understanding about
the interim arrangements for the next four weeks. They have
agreed as follows:
(1) The child shall be taken to the house of
Mat. Appeal No. 303 of 2009-C
-: 9 :-
Sri.T.B.Velappan Nair, the brother-in-law of the sister of the
appellant on 26/7/09, 2/8/09, 8/8/09 and 16/8/09 by the
additional respondent or his representative. She will be left at
that house along with Leela – a maid attending on the child. The
child shall be permitted to interact with the appellant herein as
also his relatives till 5 p.m. on such dates.
(2) The child shall not be taken out of the residential
compound of Sri.T.B. Velappan Nair and the child shall be
returned to the additional respondent or his representative at
5 p.m. on those dates.
3. Call this appeal again on 18/8/09 for further directions.
The parties shall be present with the child on that date.
R. BASANT
(Judge)
M.C. HARI RANI
(Judge)
Nan/
Mat. Appeal No. 303 of 2009-C
-: 10 :-
