R.JAYAN Vs. M.G.PARAMESWARA PANICKAR

JUDGEMENT

(1.) THIS original petition under Article 227 is instituted by the father of a minor girl child by name Gouri J.Nair now aged 10 years seeking orders directing the Family Court, Kottayam , to pass orders in OP (G&W) No.458/2007 executing and implementing Ext.P1 judgment of this Court. The petitioner submits that he and his wife Jayasree, who is now no more , were living separately. Matrimonial litigations were pending between him and his wife during the wife's life time. The minor child is in the custody of the first respondent, the maternal grandfather, ever since the petitioner's wife died. The Family Court by its judgment dated 9/12/2010 in O.P.(G&W) No.458/2007 would grant permanent custody of the child to the petitioner with limited visitation rights only to the first respondent. Ext.P1 is the judgment of this court in Mat.Appeal No.1044/2010 filed by the first respondent against the order of the Family Court in OP ( G & W) No.458/2007. The petitioner points out that under Ext.P1, this court upheld the order of the Family Court granting permanent custody of the child to the petitioner, however postponing the time fixed for handing over of the child later than what was fixed by the Family Court. The petitioner submits that even though the first respondent moved SLP(C) No.11132/2011 before the Supreme Court against Ext.P1 judgment , the Supreme Court by Ext.P2 order dismissed SLP(C) No.11132/2011 without granting special leave. It is pointed out that notwithstanding Ext.P2, custody of the child was not handed over by the first respondent on the strength of an order of stay which the Supreme Court had issued earlier in the SLP. The petitioner submits that as the Family Court was a little hesitant in passing orders on I.A. No.3171/2011 filed by the petitioner for implementation of Ext.P1 judgment as confirmed by Ext.P2 order, the petitioner filed I.A. No.1044/2012 before this court in Ext.P1 Mat.Appeal for the fixation of a definite date. The Family Court, whose remarks were called for in the matter, reported that orders will be passed in I.A. No.3171/2011 and accordingly orders were passed in the above I.A. directing the first respondent to hand over the custody of the child to the petitioner on 1/5/2012, at Thiruvananthapuram, the petitioner's place. Ext.P4 is copy of the above order. As Ext.P4 was not complied with by the first respondent, the petitioner filed I.A. No.785/2012 before the Family Court alleging non compliance of the above order. Thereafter, Family Court directed the first respondent to produce the child on 17/5/2012 in the Family Court. The first respondent did not comply with that order. Instead, he filed application seeking review of the Family Court's order. That application was dismissed by the Family Court. Then the first respondent filed I.A No.861/2012 requesting for the grant of 10 days time from 17/5/2012 for the production of the child. The petitioner complains that the Family Court did not pass any orders on the application nor did that court implement Ext.P1 and the undertaking given by the first respondent in this court. The Family Court was entertaining several applications filed by the first respondent with the sole objective of stalling the implementation of this court's judgment in Ext.P1 which has become final. One last application is filed by the first respondent before the Family Court stating that the first respondent has filed a review petition before this court seeking a review of Ext.P1. Even that application was unnecessarily entertained by the Family Court. Considering the objections filed by the petitioner to that application, the Family Court directed production of the child peremptorily on 4/8/2012. Even the above order was not complied with by the first respondent. The petitioner complains that the Family Court is adjourning the matter unnecessarily without issuing coercive process for compelling handing over of the custody of the child to the petitioner. The petitioner alleges as the Family Court is taking things very lightly, as the father of the child who is to be given proper education, it is his duty, first and foremost, to give the best education to the child who is already 10 years old. On account of the lethargy of the Family Court in the matter of implementation of Ext.P1 even the future of the child is in peril. The petitioner goes to the extent of submitting that inertia on the part of the Family Court to ensure implementation of Ext.P1, amounts to contempt of this court and even the Supreme Court. On these facts, the petitioner has raised grounds A to E and filed the original petition for the relief already indicted.

(2.) THE first respondent has not filed any counter affidavit. But he has filed Mat.Appeal No.396/2012 against Ext.P4. In the above Mat.Appeal Ext.P4 is challenged mainly on the ground that the Family Court erred in not taking into account relevant subsequent events. According to the appellant/petitioner, implementation of Ext.P4 will cause serious mental agony to the minor child and the same will not be in the best interest of the child. It is also urged that the appellant has taken steps for bringing the subsequent events to the notice of the Supreme Court . An interlocutory application filed in that regard is yet to be numbered by the Registry of the Supreme Court. It is urged that the child is 9 years and 9 months old and is academically and intellectually brilliant and matured. The child was shocked and disturbed on hearing that she will have to leave her grandfather and join her father. The child never lived with the father since her birth except for a brief period of 40 days after the death of her mother, that too on the basis of the order passed by the High Court. The child always lived in the grandfather's house along with its mother and the mother's own brother who remains unmarried. The idea of leaving the grandfather and joining the father is not at all acceptable to the child and whenever that idea is mooted to the child, she will start crying. It is urged that the child has always been telling the court that it wants to be with its grandfather and the wish of the child should have been considered sympathetically. Lastly, it is urged that if the custody of the child is handed over to the father, it will not be able to withstand the mental trauma and pain.

(3.) WE have heard the submissions of Sri.George Poonthottam learned counsel for the petitioner in O.P.(FC) No.2910/2012. Even though several opportunities were given, neither the learned counsel for the first respondent in the original petition nor the learned senior counsel who was engaged to argue the appeal on behalf of the first respondent' turned up before us. Finally as requested by the first respondent, who is the appellant in Mat.Appeal No.396/2012, we permitted him to address his submissions in the appeal as well as in the Original Petition in person. In fact, towards the end of his submissions, we permitted his son(the maternal uncle of the child) also to address us for a while.