Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 OP (FC) NO. 301 OF 2023 AGAINST THE ORDER IN O.P.NO.771/2022 DATED 25.03.2023 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR PETITIONERS/PETITIONERS/RESPONDENTS 2 & 3:
1 PRASAD, S/O.KUTTAN, AGED 40 YEARS, PAYIMBIDATH HOUSE, PAVUKKARA MURI, MANNAR VILLAGE, ALAPPUZHA, NOW RESIDING AT THUNDILCHIRAYIL HOUSE, CHINGOLI MURI, CHINGOLI VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN - 690 532. 2 BINI.R., W/O.PRASAD, AGED 31 YEARS, PAYIMBIDATH HOUSE, PAVUKKARA MURI, MANNAR VILLAGE, ALAPPUZHA, NOW RESIDING AT THUNDILCHIRAYIL HOUSE, CHINGOLI MURI, CHINGOLI VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN - 690 532.
BY ADVS. C.A.CHACKO C.M.CHARISMA BABU V.P. REMYA V.A. SALMA DILEEP CHRISTINA ANTONY RESPONDENTS/RESPONDENTS/PETITIONER & 1ST RESPONDENT: 1 SAJITH.N.M., S/O.MATHAI.N.M., AGED 37 YEARS, NEDIYORATHIL HOUSE, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, ETTUMANOOR.P.O., KOTTAYAM DISTRICT, PIN - 686 631. 2 PRASAD, S/O.YASODHARAN, PRASAD BHAVAN, NANGYARKULANGARA MURI, CHINGOLI VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN - 690 513. BY ADV ARUN P ANTONY THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH OP (FC).306/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 OP (FC) NO. 306 OF 2023 AGAINST THE ORDER IN O.P.NO.771/2022 DATED 25.03.2023 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR PETITIONERS/RESPONDENTS 2 & 3:
1 PRASAD, S/O.KUTTAN, AGED 40 YEARS, PAYIMBIDATH HOUSE, PAVUKKARA MURI, MANNAR VILLAGE, ALAPPUZHA, NOW RESIDING AT THUNDILCHIRAYIL HOUSE, CHINGOLI MURI, CHINGOLI VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN - 690 532. 2 BINI R., W/O. PRASAD, AGED 31 YEARS, PAYIMBIDATH HOUSE, PAVUKKARA MURI, MANNAR VILLAGE, ALAPPUZHA, NOW RESIDING AT THUNDILCHIRAYIL HOUSE, CHINGOLI MURI, CHINGOLI VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN - 690 532.
BY ADVS. C.A.CHACKO C.M.CHARISMA BABU V.P. REMYA V.A. SALMA DILEEP CHRISTINA ANTONY RESPONDENTS/PETITIONER & 1ST RESPONDENT: 1 SAJITH N.M., AGED 37 YEARS, S/O.MATHAI.N.M., NEDIYORATHIL KLAMATTOM, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, ETTUMANOOR.P.O., KOTTAYAM DISTRICT, PIN - 686 631. 2 PRASAD, S/O.YASODHARAN, PRASAD BHAVAN, NANGYARKULANGARA MURI, CHINGOLI VILLAGE, KARTHIKAPPALLY TALUK,ALAPPUZHA DISTRICT, PIN - 690 513. BY ADVS. ARUN P ANTONY SAILAJ RAMACHANDRAN(K/000912/2012) N.V.VINAY(K/720/2015) THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH OP (FC).301/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMIT RAWAL & C.S.SUDHA, JJ. ------------------------------------------------------- O.P.(FC) No.306 of 2023 & ---------------------------------------------------- Dated this the 11th day of September, 2023
JUDGMENT
Amit Rawal, J.
In this judgment we decide O.P.(FC) No. 301/2023 preferred against the order dated 25.03.2023 in I.A.No.2 of 2022 in O.P.No.771/2022 and O.P.(FC) No.306/23 of the same date in I.A.No.1/2022 in the same O.P. I.A.No.2 of 2022 was filed by the petitioner in O.P.No.771/2022 seeking custody of the minor child on the ground that the court at Kottayam at Ettumanoor would not have the jurisdiction as the child was in the custody of the petitioner at Karthikappally and I.A.No.1 of 2022, for granting interim custody to the father for Saturdays and Sundays. Out of the wedlock between Sajith and Bincy, one child Anaya Sajith was born on 13.03.2020. Unfortunately the wife committed suicide on 10.08.2021. After the function of funeral the custody of the child had been with the petitioners who are none else but the relatives of the deceased-wife. First respondent-husband submitted an application for interim custody vide I.A.No.1/2022 in O.P. (G&W)No.771/2022 which has been granted on Saturdays and Sundays vide Ext.P7 order. The petitioners submitted Ext.P4 application for return of the plaint on the ground that the Court at Kottayam would not have the jurisdiction, for the child is in the custody of the petitioners who were staying at Karthikapilly. The court below allowed I.A.No.1/2022 and dismissed I.A.No.2/2022 in O.P.No.771/2022.
2. Learned counsel appearing on behalf of the petitioners-
respondents in O.P.No.771/22 submitted that father is not interested in taking care and custody of the child much less the welfare of the child. This aspect has totally been ignored by the court below. The law with regard to the jurisdiction of the court would be the place of residence of the child which is at Karthikappally and therefore the court at Kottayam would not have the jurisdiction.
3. Learned counsel appearing on behalf of the respondents
through video conferencing, countered the aforementioned plea by submitting that the order is perfectly legal or justified and liable to be sustained, for it is a case of only interim custody. As far as the jurisdiction is concerned, court prima facie found that before the death of the wife, the child was in care and custody of the husband and wife at Kottayam. Even otherwise, mixed questions of facts and law are involved.
4. We have heard the learned counsel for the parties and appraised the paper books.
5. Vide the impugned orders father was granted interim custody of the
child. The father cannot be deprived of the custody of the child though it is unfortunate that the wife has committed suicide and left behind the child aged 2½ years. 1st petitioner Prasad is the brother-in-law and Bini, sister of the deceased, is the wife of Prasad. The Court noticed that during the hearing, the child was handed over to the father and the child was comfortable in the custody and lap of the father.
6. As far as the jurisdiction of the court, it is a mixed question of facts
and cannot be decided at the asking of the contesting parties i.e., the petitioners herein. The court prima facie noticed that the child before the death of her mother, was living with the parents at Kottayam and only at the time of funeral, was taken in possession and thereafter, had been in custody of the petitioners. Petitioners shall be at liberty to take objection qua jurisdiction by leading evidence. With the aforementioned observations, the orders under challenge are upheld and the two original petitions are dismissed. Sd/- AMIT RAWAL JUDGE Sd/- C.S.SUDHA JUDGE ak APPENDIX OF OP(FC)NO.301/2023 PETITIONERS' EXHIBITS:- Exhibit P1 TRUE COPY OF ORDER OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, HARIPPAD DATED 27/10/2021 IN CMP.NO. 1617/2021 IN MC.NO.92/2021 Exhibit P2 TRUE COPY OF OP.NO.771/2022 FILED BY 1ST RESPONDENT HEREIN BEFORE THE FAMILY COURT, KOTTAYAM Exhibit P3 TRUE COPY OF IA.NO.1/2022 IN OP.NO.771/22 DATED 6/5/2022 FILED BY 1ST RESPONDENT HEREIN Exhibit P4 TRUE COPY OF IA.NO.2/2022 IN OP.NO.771/22 DATED 25/7/2022 FILED BY THE PETITIONERS HEREIN Exhibit P5 TRUE COPY OF OBJECTION DATED 25/7/2022 FILED IN IA.NO.1/2022 Exhibit P6 TRUE COPY OF ORDER DATED 25/3/2023 OF FAMILY COURT, KOTTAYAM IN IA.NO.2/2022 Exhibit P7 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN OP(FC)NO.250/23 JUDGMENT DATED APPENDIX OF OP (FC) 306/2023 PETITIONERS' EXHIBITS:- Exhibit P1 TRUE COPY OF ORDER DATED 27/10/2021 IN CMP.NO.1617/2021 IN MC.NO.92/2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- II, HARIPPAD Exhibit P2 TRUE COPY OF OP.NO.771/2022 FILED BY 1ST RESPONDENT BEFORE FAMILY COURT, KOTTAYAM
Exhibit P3 TRUE COPY OF IA. NO 1/2022 DATED Exhibit P4 TRUE COPY OF IA.NO.2/2022 DATED Exhibit P5 TRUE COPY OF OBJECTION FILED BY THE
PETITIONERS HEREIN DATED 25/07/2022 IN IA.NO. 1/2022 Exhibit P6 TRUE COPY OF OBJECTION DATED 25/7/2022 FILED BY 2ND RESPONDENT HEREIN IN IA.NO.1/2022 Exhibit P7 TRUE COPY OF ORDER DATED 25/3/2023 IN IA.NO.1/2022 IN OP.NO.771/2022 OF FAMILY COURT, KOTTAYAM Exhibit P8 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN OP(FC)NO.250/23 DATED 19/5/2023