Mini Thomas vs Shaju. P.A

P.G.Ajithkumar, J.

The petitioner is the judgment debtor in E.P. No.19 of 2022 in O.P.No.1563 of 2015 on the files of the Family Court, Thrissur. Aggrieved by Ext.P12 order dated 18.03.2023 in the said Execution Petition, he filed this Original Petition under Article 227 of the Constitution of India.

When this matter came up for admission on 12.04.2023, we heard the learned counsel appearing for the petitioner in detail. Ext.P12 reads as follows;

“Both represented. Petitioner submitted that minors produced, but not handed over custody to the decree-holder. Decree Holder may initiate approximate prosecution steps. Adjourned to 05.04.2023.”

E.P. No.19 of 2022 was filed by the respondent seeking enforcement of the order dated 14.06.2017, the operative part of the order dated 14.06.2017, a copy of which is Ext.P1, reads as follows;

“(1) The permanent custody of the children shall remain with the respondent-mother.

(2) The petitioner is entitled to get custody of the children between 10 AM of the Second Saturday to 5 PM of the succeeding Sunday of each English calendar month, first half of Onam, Puja and Christmas holidays and first 15 days each in the month of April and May during summer vacation.

(3) The production and taking back of the children should be in the premises of Family Court.

(4) This order shall continue till further modification is made in due course.

(5) There is no order as to costs”

The petitioner filed Mat. Appeal. No.913 of 2017 challenging Ext.P1 order. This Court while admitting the said appeal, ordered that the petitioner should comply with the direction enabling the respondent to visit the children every Second Saturday and Sunday of every month until further orders. Ext.P2 is a copy of the order of this Court dated 10.08.2017. Thereby, the petitioner is obligated to comply with direction No.2 in Ext.P1 order. E.P. No.19 of 2022 was filed by the respondent alleging that the petitioner was not complying with the said direction. An objection was filed by the petitioner in the said Execution Petition, a copy of which is Ext.P5.

The contention of the petitioner is that there were no laches or disobedience on her part in producing the children before the Court in compliance with the Ext.P2 order. It is her contention that despite production of the children before the Family Court, the respondent did not use to interact with the children in an appropriate manner, and without exercising his right of interaction, complained before the Family Court that the petitioner did not comply with the directions in the order dated 14.06.2017, which was modified by this Court in the order dated 10.08.2017.

The learned counsel appearing for the petitioner would submit that every time the petitioner takes the children to the Family Court for interaction the fact would be recorded in the custody register maintained in the Family Court and the facts reflected from Exts.P7 to P9 which are the copies of various pages in the custody register would reveal that the allegations leveled against the petitioner concerning alleged noncompliance are false. The learned counsel would also submit that except during the lock-down period, and when the children were suffering from ailments, they were promptly produced before the Family Court. Therefore, the direction of the Family Court as per Ext.P12 to initiate prosecution steps against the petitioner is totally illegal and unjust. Pointing out such facts and circumstances, the learned counsel urges to set aside Ext.P12.

In Ext.P12, no right of the parties was decided. When the respondent raised an allegation that the children, despite being produced in the Family Court, have not been handed over to the respondent as directed in the custody order, the Family Court instructed the respondent to initiate appropriate prosecution steps. The said direction can be termed as a permission given to the respondent to take appropriate action in regard to the complaint he has raised. There is no direction that the petitioner should be prosecuted. There is no order in Ext.P12 that there are materials for taking action for prosecution steps against the petitioner. When that is the nature of Ext. P12 order, how can the petitioner approach this Court invoking the provisions of Article 227 of the Constitution of India for setting aside that order?

Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analyzing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.

Supervisory jurisdiction under Article 227 of the Constitution of India can be exercised to correct if there is any flagrant violation of fundamental principles of law of justice in rendering an order. If there occurred serious perversity in entering into a finding resulting in gross and manifest failure of justice and thereby flouting the basic principles of natural justice also this Court may be able to exercise its jurisdiction to correct it, under Article 227 of the Constitution of India. Here, the Family Court, Thrissur did not enter into any finding regarding the prosecution steps contemplated against the petitioner. The Family Court only had observed that the respondent was free to initiate appropriate prosecution steps. It does not contain any finding or order.

In such circumstances, we are of the view that this Court is not expected to exercise its powers under Article 227 of the Constitution of India in order to interfere with Ext.P12 order. It is for the Family Court to consider whether there occurred any violation of the custody order on the basis of evidence placed before it. Even before filing a petition for prosecuting, the petitioner rushed to this Court. Therefore, this Original Petition is too premature to be entertained.

Hence, this Original Petition is dismissed.