RAHEENA Vs. K.H. AKBAR

JUDGEMENT

(1.) UNDER challenge in this Original Petition filed under Article 227 of the constitution by the petitioner who is the mother of a minor child by name "Najma Nehrin" are Exts. P5 and P8 orders passed by the Family Court, Malappuram. Ext. P5 order was passed, way back on 18th January, 2012. The petitioner did not feel like challenging Ext. P8 till the respondent filed Ext. P6 application for modification of Ext. P5 and the Family Court passed Ext. P8 order. Notwithstanding the delay in the matter of challenge on Ext. P5, we have gone through Ext. P5. We find that under Ext. P5 the petitioner is directed to handover the child already produced before the court to the first respondent, its father with a reciprocal direction to the first respondent to return the child at 4.30 p.m. on the same day. There is a further direction in Ext. P5 that the petitioner shall produce the child on every third Saturday at 11.00 a.m. to be returned to the first respondent at 1.30 p.m. In other words under Ext. P5 temporary custody of the child is given to its father for two and a half hours on every third Saturday. We should say immediately that we do not find any infirmity about Ext. P5 and much less an infirmity which appeals to our visitorial jurisdiction under Article 227. As for Ext. P5 we are sure that the same will pass the test not only of visitorial jurisdiction but even of regular appellate jurisdiction as what has been done by the learned Judge under Ext. P5 is to give temporary custody of the child to its father for just two and a half hours on every third Saturday in a month. No wonder the petitioner did not feel like challenging Ext. P5 till Ext. P6 was moved by the respondent.

(2.) EXT . P8 order has been passed by the learned Family Court on Ext. P6 petition filed by the petitioner for modification of Ext. P5. Under Ext. P8 the direction is only that the petitioner shall produce the child before the court on 17/09/12 and handover the child to the respondent for one day and there is a further direction that the respondent shall return back custody of the child on the next day at 3.30 p.m. i.e. on 18/09/12. In other words as this OP is coming up for consideration only today, Ext. P8 ought to have been complied with at the earliest in part by the petitioner by now i.e. on 17/09/12. It appears to us that the petitioner has not complied with the direction in Ext. P8 that the child should be produced before the court on 17/09/12 leading to institution of Ext. P9 application by the respondents. The prayer in Ext. P9 is that Ext. P8 be implemented. Even though Sri. Venugopalan, the learned counsel for the petitioner would address submissions challenging the very maintainability of Ext. P9, we are not inclined to consider those submissions now. It is open to the petitioner to resist Ext. P9 by filing counter affidavit. We decline jurisdiction and dispose of the Writ Petition without granting the relief sought for.