SMITHA K Vs. P DEVADAS

JUDGEMENT

(1.) PETITIONER challenges Exhibit P14 order. Brief case of the petitioner is as follows:

(2.) EXHIBIT P1 is an order passed by the Family Court in O.P.1003 OF 2008 directing the respondent to hand over custody of minor child to the father on all Sundays from 8 AM to 6 PM. There is reference to addiction to alcohol of the respondent. The petitioner filed EXHIBIT P3 seeking alteration of the order on 9.11.2010. The Court did not consider and pass orders in that petition, but directed to use force. The petitioner filed EXHIBIT P7 review and EXHIBIT P8 stay petition. Thereafter, the Court passed EXHIBIT P11 order directing the petitioner and the Police Officer to comply with the order. Her case is that there is no wilful non-compliance by her. The petition for alteration and cancellation of order in O.P.No.1003 of 2008 is pending before the Family Court, without considering and passing orders on the same. Aggrieved by passing of EXHIBITs P6 and P11 orders, the petitioner has filed another Writ Petition, which is pending consideration. Thereafter, the Court passed a suo motu order directing handing over of othe child from 5.2.2011 to 8.2.2011. EXHIBIT P14 gives overnight custody of the minor child.

(3.) IT is true that Exhibit P14 is an order passed on a petition filed to take action. What is of paramount interest in all such proceedings is the welfare of the child. IT is not in dispute that the child is studying in the Kendriya Vidyalaya. The child has to attend the school tomorrow. Of course, learned counsel for the respondent points out that if custody is given to the respondent, he can also put her in school tomorrow. The order would show that it is passed to compensate the respondent for not having given him custody as ordered for two days. We must notice that the custody which is given as per Exhibit P1 order is not overnight custody. We must also record here that we had interacted with the child in the other Original Petition. Since the respondent is willing to take the child and reside with his elder sister Smt.Ramani at Kozhikode, we would think that the interest of all the parties in particular, the welfare of the child will also be protected, if we modified Exhibit P14. We do not think that it is necessary to hand over custody of the child as directed in Exhibit P14 order for four days.