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2023 DIGILAW 679 (KER)

X v. Y

2023-08-25

A.MUHAMED MUSTAQUE, SOPHY THOMAS

body2023
JUDGMENT : A. Muhamed Mustaque, J. This original petition arises out of an order passed by the Family court, Kozhikode in an application filed by the mother for the return of the younger child. The younger child born in the wedlock was given to the custody of the father pursuant to Ext.P3 order. It is to be noted that the original petition itself was filed by the father and at a later stage, he not pressed the original petition. In that, an interim application was filed by the mother to get back the custody of the younger child. There are two legal issues germane for consideration. 2. Whether the Family Court could have allowed a father to not press the original petition. According to us, this is a serious issue touching upon the jurisdiction of the Court. Though the Court is acting on the petition filed by the father, Court could not have closed it without ensuring that the welfare of the child is protected. It is to be noted that the Court had also passed an order, pending proceedings, giving custody of the younger child to the father. In the parens-patriae jurisdiction in which the Court stepped into, the Court has duty to see that child's interest is protected, especially when Court passes orders in the matter. The present dilemma arises before the Family Court when the mother has filed an application to return the younger child. We note that the issue should have addressed all questions relating welfare of the children in the matter. The matter has been pending since 2017. Many years lapsed and many orders have been passed, including by this Court also. We are of the view that the original petition itself has to be considered including the petition filed by the mother for return of the younger child. 3. We note, in the wrangling between the mother and the father, often interest of the children is not properly represented in such matter. In this matter the father happens to be a lawyer. He has shown smartness in this case by not pressing the original petition especially he knows that an interim order has been passed giving custody in his favour. The petitioner has a case that the consistent disappearance of the mother in the Court and non-prosecution of the case by her resulted in dismissing the original petition as not pressed. He has shown smartness in this case by not pressing the original petition especially he knows that an interim order has been passed giving custody in his favour. The petitioner has a case that the consistent disappearance of the mother in the Court and non-prosecution of the case by her resulted in dismissing the original petition as not pressed. We record the said submission. Be that it may, the Court could not have allowed the request of the petitioner to dismiss the original petition especially when such an order has been passed giving interim custody of the minor child to the father. 4. We see that there are POCSO cases registered against the maternal grandparents. This indicate that, in the process, the interests of the children is sidestepped. We are of the view that the children in this matter should be represented by an independent counsel. We had the advantage of hearing Adv.Parvathi Menon, Project Coordinator, VRC, yesterday in a similar matter and she suggests appointing an independent counsel for the children in such matters to protect their welfare. Therefore, we are of the view that the Family Court, before proceeding further in this matter shall appoint a counsel through District Legal Services Authority, Kozhikode to represent the children independently. The District Legal Services Authority, Kozhikode is directed to find a suitable lawyer, who can render pro bona services and also to seek assistance of child psychologist to support the lawyer. 5. This original petition is therefore disposed of directing the Family Court to consider and dispose of the matter afresh. The matter shall be concluded within three months. Registry shall forward a copy of this judgment to the Kerala State Legal Services Authority.