SHINU SHARAFUDEEN Vs. AYSHA

JUDGEMENT

(1.) The above appeal is instituted against the order of the Family Court, Attingal in O.P.(G & W) No.327/2014, dated 10.04.2015, through which an original petition filed by the appellants along with the father of the 1st appellant was dismissed for default. Learned counsel for the respondent had raised a contention regarding maintainability of this appeal, on the basis that the appellants have got an effective remedy under Rule 9 of Order IX of the Code of Civil Procedure.

(2.) Learned counsel for the appellants had drawn our attention to provisions contained in Section 19 of the Family Courts Act, 1984. The nonobstante clause contained therein that, an appeal shall lie from every judgment of the Family Court, notwithstanding anything contained in the Code of Civil Procedure, would render the appeal maintainable, is the contention. We are of the view that, in view of the specific provisions contained under Section 19, the appeal is maintainable, even though the appellants are also entitled to seek remedy before the Family Court under Order IX Rule 9 C.P.C.

(3.) Coming to the merits of the impugned order, it was contended by learned counsel for the appellants that, the original petition was filed by them along with the deceased father and on the date when the case was dismissed for default, the 2nd appellant herein along with the father of the 1st appellant (husband of the 2nd appellant) were present before the Family Court. The only person who defaulted appearance was the 1st appellant, on that day. However, the said fact is disputed by learned counsel appearing for the respondent. It is submitted on behalf of the appellants that the respondent herein is staying along with the minor child in Sharjah, UAE. It is the grievance of the appellants that, despite the fact that the respondent is available with the child in India at present, the appellants are not permitted even to see the minor child. Learned counsel for the respondent had disputed the fact that the respondent and the minor child are now available in India.