Loading...

R.Jayan vs P.Jayasree on 27 October, 2010

Kerala High Court
R.Jayan vs P.Jayasree on 27 October, 2010
       

  

  

 
 
  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 :-

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information