RAJU CHANDRAN AND ORS. Vs. LATHA SUNDARESWARAN

JUDGEMENT

(1.) The petitioners herein are the petitioners in O.P. No. 1123 of 2013 on the file of the Family Court, Palakkad. The respondent herein is the respondent before the court below. The original petition before the Family Court was filed seeking permanent custody of two minor children born out of the wedlock between the first petitioner and the respondent. The Family Court, Palakkad had adjudicated the original petition and dismissed the same through Ext.P1 judgment, but reserving visitation right to the petitioners on all Saturdays and Sundays, whenever the 1st petitioner is available at the native place on leave. In terms of Ext.P1 judgment, the 1st petitioner was permitted to take custody of the children at 9 a.m. from the house of the respondent on all Saturdays and to return the children at the same place before 5 p.m. on subsequent Sundays. Case of the petitioners is that, the 2nd petitioner had sent a registered notice to the respondent intimating the fact that the 1st petitioner will be available at native place from 3.9.2015 till 29.9.2015. The respondent was requested to make arrangements for effecting the visitation right on that basis. The petitioners have filed I.A. No. 1372 of 2015 (Ext.P3) before the court below, seeking direction for production of the minor children before the court and to hand over custody on all Saturdays and Sundays from 3.9.2015 to 29.9.2015 and also to permit the 2nd petitioner to contact the minor children over telephone on all Wednesdays between 8 p.m. and 9 p.m., as ordered in Ext.P1. Ext.P3 interim application was filed before the Family Court on 4.9.2015. The Family Court ordered notice in the said petition and posted the case to 11.9.2015. On 11.9.2015, the case was again adjourned to 15.9.2015. According to the petitioners, they could pay the Batta and take steps for effecting service of notice on the respondent, only on 14.9.2015. But the process server could not be deputed from the court since 12.9.2015 and 13.9.2015 were holidays. Therefore on 15.9.2015 when the case was taken up, the court below adjourned the interim application to 15.9.2015, as evidenced from the extract of the 'A' Diary proceedings produced as Ext.P4.

(2.) It is stated that the 1st petitioner has to leave the place on 29.9.2015 on the expiry of his leave period. It is alleged that the court below had failed in considering the above aspect and in ordering production of the children. Under such circumstances, the petitioners are approaching this Court by invoking its supervisory jurisdiction vested under Article 227, seeking direction to grant custody of the children to the petitioners in terms of Ext.P1 order. On the alternative, the petitioners seek direction to the Family Court to dispose of Ext.P3 application expeditiously.

(3.) It is evident from the terms of Ext.P1 judgment that the petitioners were entitled to have custody of the children on every Saturdays and Sundays, when the 1st petitioner is available in station. Specific conditions stipulated in Ext.P1 is to the effect that the 1st petitioner can take custody of the children from the place of the respondent at 9 a.m. on all Saturdays and should return the children at the very same place at 5 p.m. on the next Sundays. Nothing is mentioned in the affidavit filed in support of Ext.P3 application filed before the Family Court or in this original petition filed before this Court, to the effect that the 1st petitioner went to the house of the respondent to take custody of the children on any specific Saturday, after he had reached the native place on leave. However, there is an allegation that the respondent had violated terms of Ext.P1 judgment by denying the 2nd petitioner to have access to the children over telephone, in violation of the stipulations contained therein permitting such contact on every Wednesday.