High Court Kerala High Court

Suchithra Balan vs Rajesh Nair on 6 August, 2010

Kerala High Court
Suchithra Balan vs Rajesh Nair on 6 August, 2010
       

  

  

 
 
  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.
                       **********************
                  W.P(C) No.18220 of 2010
                       *********************
             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/