PRADEEP @ KANNAN S/O OMANAKUTTAN Vs. JAYAKRISHNAN M

JUDGEMENT

(1.) In this original petition filed under Article 227 of the Constitution of India, the petitioner is challenging Ext.P2 order passed by the Family Court, Ernakulam in I.A.No.4873/2015 in an Unnumbered O.P. filed in the year 2015. The petitioner herein is the 2nd respondent before the Family Court. The original petition before the Family Court was instituted by the 1st respondent herein, seeking restitution of conjugal rights against the 2nd respondent. In I.A.No.4873/2015, the 2nd respondent sought a relief to appoint the petitioner herein as guardian of the 2nd respondent. Through the order impugned herein, the Family Court allowed the interim application and the petitioner herein was appointed as the guardian of the 2nd respondent herein and the original petition was ordered to be numbered.

(2.) The petitioner is challenging Ext.P2 order, on the ground that, there was no notice served on the petitioner in the application for appointing him as guardian of the 2nd respondent. It is stated that, the original petition before the Family Court was subsequently numbered as O.P.No.238/2016. It is pointed out that, the 1st respondent had filed another case as O.P.(G & W) No.239/2016, seeking declaration of guardianship and custody of the minor child born out of the wedlock between respondents 1 and In that case also the Family Court had allowed an interim application and appointed the petitioner as the guardian of the 2nd respondent. The said order was taken up in challenge before this court in O.P. (FC)No.551/2017. Through Ext.P3 judgment of this court, the said order was set aside, holding that it is laconic and was issued in total non-application of mind without stating any reasons. This court specifically observed that, the Family Court had failed in following the procedure stipulated under Order XXXII Rule 3 and 15 of C.P.C. Under such circumstances, it is contended that Ext.P2 order is unsustainable and is liable to be set aside.

(3.) The 2nd respondent appeared through counsel and contended that, the allegation raised by the 1st respondent before the Family Court that the 2nd respondent is mentally incapacitate to conduct the case by herself, is absolutely incorrect and false. Despite receipt of notice from this court, the 1st respondent had not chosen to enter appearance or to contest the above original petition.