Bineesh.V. Pillai vs Prasannakumari Amma

K.T. Sankaran, J.—The petitioner married Salini Krishna, daughter of the respondent on 30.10.2006. A child was born in that wedlock on 14.10.2008. The child is Niranjana Krishna. Salini Krishnan died on 11.9.2009. The petitioner was an advocate. On the death of his wife (Salini Krishna), the petitioner got employment in the Kerala State Road Transport Corporation, under the compassionate employment scheme. Alleging that on 27.2.2011 the child was taken away by the petitioner, the respondent filed O.P. (G.&W.) No.425 of 2011 before the Family Court, Kottarakkara praying for custody of the child. The Family Court passed an interim order dated 1.7.2011, the operative portion of which reads as follows:

In the above circumstance I direct the interim custody of the ward for a month, with the petitioner, grand mother. After 1 month the ward may be handed over to the respondent for 1 month. The intermittent change of residence will enable the child to get acclimatized with the atmospheres in both homes of the child. There is no dispute regarding the guardianship of the ward on the respondent. In the circumstance, direction is given as above for compliance with effect from today, the 1st of July 2011. Call on 1.8.2011.

The order dated 1.7.2011 was challenged by the petitioner in O.P.(F.C.) No.2262 of 2011. A Division Bench of this Court disposed of O.P.(F.C.) as per the judgment dated 9.8.2011. The operative portion of the judgment passed by this Court reads as follows:

For the aforesaid reasons, we modify the impugned order and direct as follows:

i) The petitioner shall make available the child before the Family Court, without fail, at 11.00 a.m. on 12.8.2011 and the Family Court will hand over custody of the child in terms of this order to the maternal grandmother who is the respondent before us.

ii) The petitioner/father will be entitled to visit the child in its maternal grandmother''s home on any evening after the maternal grandmother reaches home. We are sure that he would be a welcome visitor for the time being and would evolve to be a responsible father who would get not only the love of the child, but also the recognition of the mother-in-law and other relatives of the unfortunate woman who had died at a young age, leaving behind him and the daughter.

iii) We further direct that the aforesaid arrangement shall continue until otherwise ordered by the Judge of the Family Court, which may be in due course, taking into consideration all the aforesaid matters, including the necessity to ensure an assessment of the father in the lines indicated in this judgment if he were to be given custody of the girl child.

Original petition is ordered accordingly.

On 7.9.2011, the Family Court passed the following order:

Petitioner present. Custody of child has already been given to the petitioner by the order of Hon''ble High Court in O.P.(F.C.) No.2262 of 2011(R). Hence there is no subsisting grievance for the petitioner. Original petition not pressed. Dismissed.

The order dated 7.9.2011 is under challenge in this Original Petition (F.C.).

The respondent gained custody of the child only as per the order dated 9.8.2011 passed by this Court. That order was subject to the final result of the Original Petition pending before the Family Court. Several directions were issued by this Court in the matter of final disposal of the Original Petition. However, the respondent made a short-cut and adopted a dubious method of withdrawing of the Original Petition. It would appear that the Family Court was misled into thinking that because of the order in O.P.(F.C.) No. 2262 of 2011, the grievance of the respondent was redressed. The respondent is free to withdraw the Original Petition filed by her. But she cannot, at the same time gain an advantage or upper hand over the petitioner making use of the order passed by this Court and at the same time retain that benefit without any risk of her Original Petition being considered on the merits. The respondent should not have adopted this method. She is not an illiterate lady. Either she did not get proper advice or she was advised to do so. If the Original Petition was to be dismissed as not pressed, the respondent was bound to restore the benefit which she obtained. She did not make any such offer.

For the aforesaid reasons, we are of the view that the order passed by the Family Court is unsustainable. The order dated 7.9.2011 passed by the Family Court, Kottarakkara is set aside. It is for the respondent (Prasannakumari Amma) to decide whether she should press the Original Petition or to continue to prosecute the Original Petition before the Family Court. If she does not want to continue to prosecute the Original Petition, she is bound to give back the child (Niranjana Krishna) to Bineesh, the respondent in the Original Petition.

O.P. No. 425 of 2011 on the file of the Family Court, Kottarakkara stands restored. The Family Court shall proceed in accordance with law.