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2018 DIGILAW 1046 (KER)

Nisha K Pillai v. Rachu Rajan Daniel

2018-12-13

C K ABDUL REHIM, T.V.ANIL KUMAR

body2018
JUDGMENT : C.K.ABDUL REHIM, J. 1. The above original petition is filed invoking the supervisory jurisdiction vested to this Court under Article 227 of the Constitution of India, challenging the orders passed by the Family Court, Ernakulam in I.A.Nos.3744/2017 and 3490/2018 in O.P. No. 2100/2017. 2. The original petition before the Family Court was filed by the respondent herein seeking permanent custody of the minor child of the parties, named Miss. Mireille Susan Daniel. The respondent filed I.A. No.3744/2017 seeking interim custody of the child during pendency of the original petition. In Ext.P3 order, the Family court had allowed interim custody of the child to the respondent during Onam, X-mas and summer vacations. It was clarified that, if the petitioner herein is also available in Kerala during the vacations, then the custody shall be shared equally between the parties. The court further insisted that, whenever custody of the child is to be given each other, the party shall be personally present before the court along with the child. The Family Court also insisted that the child shall not be removed out side India, without written permission of the court. The Family Court had also insisted various other conditions with respect to the care and protection of the child while in custody of the parties, based on the said order passed. 3. When Ext.P3 order was in force, the respondent again filed I.A. No.3490/2018 seeking leave of the court to take the minor child to Dubai during Onam holidays, from 17.8.2018 to 29.8.2018. The Family court passed an order in the said application, finding that the child can be given custody to the respondent herein during Onam holidays with permission to take her abroad from 18.8.2018 to 29.8.2018. Such a finding was arrived based on the conclusion that the petitioner herein has no plan to be here during the Onam holidays. The petitioner herein was directed to produce the original passport of the child before the Family court on 17.8.2018. 4. The petitioner is mainly assailing Ext.P5 order passed in I.A.3490/2018 through which the Family court had permitted the respondent to take the child outside India during the Onam holidays. According to the petitioner, the said permission was granted without there being any substantial reason for deviating the condition stipulated in Ext.P3 order that the child shall not be removed outside India, without written permission from the court. According to the petitioner, the said permission was granted without there being any substantial reason for deviating the condition stipulated in Ext.P3 order that the child shall not be removed outside India, without written permission from the court. It is contended that, the removal of the child to outside India during pendency of the Original Petition will cause severe prejudice because there is every chance of the respondent refusing to bring back the child, and in such a case the courts in India would be incapacitated and incapable to enforce the orders for handing over custody back to the petitioner. 5. Learned counsel for the petitioner had raised a contention that in view of the such an apprehension the permission is granted to the respondent through Ext.P3 order to approach the Family court seeking permission for removal of the child outside India, need to be interfered and set aside by this court. All such contentions raised by the petitioner was stiffly opposed through detailed counter affidavit filed by the respondent. 6. After considering the various contentions and after hearing counsel appearing on either side, we notice that the impugned directions contained in Ext.P5 interim order passed by the Family Court has become infructuous by lapse of time and by virtue of the interim stay granted by this Court against the operation of the said order. Therefore, the only question now arising for consideration in this Original Petition is whether any interference is warranted with respect to the conditions incorporated in Ext.P3 order that the child shall not be removed outside India without the written permission of the court. The contention of the petitioner is that, giving such liberty to the respondent to approach the court will cause prejudice and that no permission can be granted to the respondent to remove the child outside India until the disposal of the Original Petition. We take note of the fact that, the above said condition was incorporated in Ext.P3 order by the Family Court, only with an intention to restrain the parties from taking the child outside India without permission from the Family court. We do not think it appropriate to restrain the Family Court from considering any such application if filed by any of the parties. This is because, the Family court is vested with powers to take an appropriate decision in case any such application is filed. We do not think it appropriate to restrain the Family Court from considering any such application if filed by any of the parties. This is because, the Family court is vested with powers to take an appropriate decision in case any such application is filed. We do not think that the Family court will not appreciate the apprehensions expressed by the petitioner in permitting the minor to be taken outside the country during pendency of the Original Petition. But at the same time, if there is an extreme circumstances which is convincing to the Family Court, it will be left open to the Family Court to take an appropriate decision in that respect. At any rate, we do not think that a removal of clause No.4 from Ext.P3 order is warranted at this stage. Under the above mentioned circumstances, the above Original Petition is hereby dismissed by declining interference in Ext.P3 order and also declining interference in Ext.P5 order on the premise that it has become infructuous, subject to the observations made hereinabove.