IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31128 of 2008(S)
1. SHAJAHAN, S/O.SHAHUL HAMEED,
... Petitioner
Vs
1. LATHEEFA, D/O.HASANARKUNJU,
... Respondent
2. MARIYAM BEEVI, POORAMBANKADU VEEDU,
3. SUB INSPECTOR OF POLICE,
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent :SRI.S.BIJU (KIZHAKKANELA)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :11/11/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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W.P.(C) No.31128/2008-S
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Dated this the 11th day of November, 2008.
J U D G M E N T
Raman, J.
Shajahan, the petitioner had filed O.P.(G&W) No.201/2008 before the
Family Court, Kollam for custody of the minor children born to him through the
first respondent (Ext.P1). The petitioner filed I.A.No.502/2008 seeking interim
custody of the children. The court below allowed the I.A more so, because the
respondent wife was absent and she was declared ex parte. That order is
produced as Ext.P2. As per the said order, interim custody of the children was
given to the petitioner herein. But, subsequently, it appears that the parties
compromised and started living together. As a result, there was no need felt to
prosecute the main O.P pending before the Family Court, which was eventually
dismissed for default. But the contention of the petitioner is that soon thereafter
the wife again left the house with the children as a result of which it has become
necessary to prosecute the case and he has filed an application for setting aside
the order dismissing the case for default and also for restoration of the case to
the file. Since the application was belated, he had also filed an application for
condonation of the delay. Exts.P4 and P5 are the applications so filed. The
Family Court has posted the said two petitions for hearing on 23/12/2008.
W.P.(C) No.31128/2008
-:2:-
Praying that in such circumstances until the matter is finally disposed of by the
Family Court, interim custody of the children be granted to the petitioner that
this writ petition is filed.
2. Efforts were made to bring out a settlement between the parties
which, however, failed. Even today, the parties were directed to appear before
this Court and we interacted with them and their children, we also had a
discussion with their counsel. After interaction, we find that a settlement could
not be reached and as such an adjudication over the right of the parties for
custody of the minor children has to be made by the Family Court. In the
absence of any order on merits it is agreed by the parties that Ext.P2 can be set
aside and Exts.P4 and P5 can be allowed and main O.P restored to file.
Accordingly, Exts.P4 and P5 will stand allowed and fresh orders will be passed
in I.A.No.502/2008.
The parties shall appear before the Family Court on 25/11/2008. It is
open to the respondents herein to file counter affidavit in I.A.No.502/2008,
sufficiently early, so that the court could dispose of the I.A. expeditiously.
This writ petition is disposed of as above.
(P.R. Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
ms