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2018 DIGILAW 227 (KER)

MITHRA v. NAIR VS BAIJU G. S.

2018-03-07

SATHISH NINAN, V.CHITAMBARESH

body2018
JUDGMENT : Chitambaresh, J. 1. “It is however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof” observed the Supreme Court in Jai Singh v. Municipal Corporation of Delhi and another [ (2010) 9 SCC 385 ] in the context of the exercise of jurisdiction under Article 227 of the Constitution of India. This principle applies on all fours for the exercise of the power to make interlocutory order for production of minor and interim protection of person and property under Section 12 of the Guardians and Wards Act, 1890 ('the Act' for short) also. 2. The respondent sought permanent custody of his minor daughter by name Agneya B. Nair in OP(G&W)No.107/2018 on the file of the Family Court, Thiruvananthapuram under Section 7 of the Act. The respondent also sought a declaration that he is the guardian of the minor who is now aged seven years and studying in the II Standard residing with her mother - the petitioner herein. The original petition was accompanied by I.A.No.101/2018 filed under Section 12 of the Act seeking an interlocutory order for temporary custody of the ward during weekends. The crux of the allegation is that the petitioner left the matrimonial home on her own accord and that she being employed has little time to pay attention for the ward. The original petition and the interlocutory application dated 17.1.2018 came up for preliminary hearing on 19.1.2018 when the Family Court passed the following order ex parte: “Heard the petitioner. I have perused the affidavit and documents produced. I am satisfied that petitioner has made out a prima facie. Therefore, respondent is hereby directed to give temporary custody of the ward to the petitioner on every alternative Fridays at 6.30 p.m. till Sundays at 6.30 p.m. and also hereby directed the counter petitioner not to restrain the minor from contacting the petitioner and his mother. The handing over and returning of the ward shall be from the court premises after making necessary entries in the register maintained in the office for that purpose. Hence the petition stands allowed to the extent mentioned above.” The above interlocutory order passed by the Family Court is challenged by the petitioner under Article 227 of the Constitution of India mainly contending that she ought to have been put on notice before. 3. Hence the petition stands allowed to the extent mentioned above.” The above interlocutory order passed by the Family Court is challenged by the petitioner under Article 227 of the Constitution of India mainly contending that she ought to have been put on notice before. 3. The petitioner adds that she has already moved under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in M.C. No. 27/2018 on the file of the Court of the Chief Judicial Magistrate, Thiruvananthapuram. The criminal court has also passed an interim order dated 12.1.2018 in C.M.P. No. 144/2018 restraining the respondent from entering into the house of the petitioner or causing trouble in her work place. The interim order further restrains the respondent from causing trouble to the ward in her school (Holy Angels School, Nanthancode) or forcibly obtaining the custody of the ward. It is the case of the petitioner that she would have brought all these facts to the notice of the Family Court had she been put on notice and heard before the impugned order. The petitioner points out that the respondent is having extra-marital relationships and used to physically manhandle her forcing her to shift to a rented house with the ward. The petitioner further alleges that the respondent is a person having visual and hearing disability and used to behave cruelly even with the ward many a times leading to hospitalization. 4. We heard Mr. S. Renjith, Advocate on behalf of the petitioner and Mr. M.Sreekumar, Advocate on behalf of the respondent. 5. Section 12 of the Act is as follows : “12. Power to make interlocutory order for production of minor and interim protection of person and property.- (1) The Court may direct that the person, if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. (2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country. (2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country. (3) Nothing in this section shall authorise- (a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or (b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.” It is no doubt true that the Family Court has abundant power to direct the production of the ward at such place and time and before such person as it appoints and may make such order for the temporary custody and protection. But such an interlocutory order should be passed only after putting the opposite party on notice and after affording a reasonable opportunity of being heard. Notice should be ordered in an application for interlocutory order in terms of Section 12 of the Act to enable the opposite party to traverse the allegations therein and contest the same. There may be reasons as to why the custody shall not be changed even temporarily owing to the health condition of the ward or the antecedents of the petitioning party. There may also be cases where orders already passed by a competent court or tribunal operate which has been suppressed in the interlocutory application filed. It will be too dangerous and risky for the ward if an interlocutory order is passed in terms of Section 12 of the Act ex parte keeping the party with whom the ward is in custody in the dark. 6. The Supreme Court in Athar Hussain v. Syed Siraj Ahmed [ (2010) 2 SCC 654 ] has held as follows as regards the prima facie case and balance of convenience in granting interim custody of the ward: “A plethora of decisions of this Court endorse the proposition that in matters of custody of children, their welfare shall be the focal point. Once we shift the focus from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ.” Hence not only the prima facie case but also the balance of convenience from the point of view of the ward should be considered while granting interim custody in terms of Section 12 of the Act. The application for interlocutory order ought to be considered on merits by the Family Court on the basis of affidavits and documents before the parties let in evidence in the main proceedings. 7. This is not to mean that under no circumstances can the Family Court pass an interlocutory order for the production of the ward or interim protection in terms of Section 12 of the Act ex parte. Take a case where a ward is being taken abroad or shifted to a corner of the country by one of the parties having custody in order to defeat the arms of law or the jurisdiction of the local court. The Family Court under such circumstances is not powerless to pass an order of restraint to ensure that the ward is not removed from its jurisdiction where she now resides. There may be cases where the ward is battling for life and immediate medical attention may be needed for which an interlocutory order could be passed ex parte. The above are only illustrative and not exhaustive of the cases where an interlocutory order could be passed even without waiting for service of notice on the opposite party. Thus the power to pass interlocutory orders ex parte under Section 12 of the Act being wide has to be exercised by the Family Court with great care, caution and circumspection. 8. Here is a case where the criminal court has passed an ex parte interim order restraining the respondent from causing troubles to the ward in her school or from forcibly obtaining her custody until further orders. But the interlocutory order of the Family Court directs the petitioner to give temporary custody of the ward to the respondent on every alternate Fridays at 6.30 p.m. till Sundays at 6.30 p.m. The interlocutory order of the Family Court passed on 19.1.2018 militates against the interim order of the criminal court passed as early as on 12.1.2018. But the interlocutory order of the Family Court directs the petitioner to give temporary custody of the ward to the respondent on every alternate Fridays at 6.30 p.m. till Sundays at 6.30 p.m. The interlocutory order of the Family Court passed on 19.1.2018 militates against the interim order of the criminal court passed as early as on 12.1.2018. Whether the allegations in the application filed for interlocutory order under Section 12 of the Act are true or not at least prima facie can be decided only after hearing the petitioner also. Such interlocutory order directing the temporary custody of the ward to be given to the respondent ought not to have been passed ex parte in the circumstances. We leave the matter there directing the Family Court to re-consider I.A.No.101/2018 in OP (G&W) No. 107/2018 after affording the petitioner an opportunity to file an objection thereto. We set aside the order dated 19.1.2018 passed therein further making it clear that the Family Court is free to pass appropriate orders expeditiously after hearing both the sides. The original petition is allowed. No costs.