GEORGE WILSON Vs. RESMY PETER

JUDGEMENT

(1.) The Petitioner herein is the respondent in MC No. 168 of 2011 on the files of Family Court, Ernakulam. The above MC was filed by the respondent herein under Section 125 of the Code of Criminal Procedure (for short 'CrPC') claiming maintenance allowance from the Revision Petitioner. The Revision Petitioner is the husband of the respondent herein and father of the children born in that wedlock. Though the MC was filed claiming maintenance allowance, the Family Court passed an interim order granting interim custody of the minor two children to the respondent herein for two days in all second Saturdays with effect from 10 a.m. at the premises of Thoppumpady Police Station and ensuing Sundays till 4.30 p.m. The respondent shall return back the children to the Police Station premises on or before 5 p.m. The respondent shall take minor daughter to the Sunday school, i.e. in the present school where she is studying and the order will be in force until further orders. This order is under challenge in this Revision Petition. The learned counsel for the Revision Petitioner submits that the Family Court has no jurisdiction to pass such an interim order in a MC filed under Section 125 of the CrPC, claiming maintenance allowance. So the order under challenge is void ab initio due to the lack of jurisdiction. Similarly, the Family Court went wrong by passing the interim order, disregarding the judgment passed by this Court in OP (FC) No. 3918 of 2011. In short, the Family Court has transgressed the jurisdiction of this Court also.

(2.) The only question to be considered in this Revision Petition is whether the Family Court has jurisdiction and the power to pass the interim order under challenge.

(3.) Going by the impugned order it could be seen that apparently it is passed in the MC filed under Section 125 of the CrPC seeking maintenance allowance. As rightly pointed out by the learned counsel for the Revision Petitioner in MC filed under Section 125 of the CrPC seeking maintenance allowance, the Family Court, has no jurisdiction to pass an interim order granting interim custody of the children to the respondent herein. Secondly, earlier the respondent filed OP No. 994 of 2011 for custody of the children and in that OP an interim order directing the Revision Petitioner to grant access to the respondent to see the children from 10.30 a.m. to 12 noon at the Court premises on every 1st and 3rd Saturday until further orders. The above interim order was challenged in OP (FC) No. 3918 of 2011 by the respondent herein. In that OP (FC) the order under challenge was modified as given below.