X Vs. Y

JUDGEMENT

(1.) 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. 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.