Noushad Flourish vs Akila Noushad

P.G.Ajithkumar, J

This is a petition filed by the petitioner in O.P.No.389 of 2019 on the files of the Family Court, Thalassery. He filed I.A.Nos.21,22 and 23 of 2022 in that O.P. As per order dated 14.06.2022, the Family Court allowed I.A.Nos 21 and 22 of 2022, but dismissed I.A.No.23 of 2022. The petitioner filed this original petition under Article 227 of the Constitution of India seeking to set aside the order dismissing I.A.No.23 of 2022 in O.P.No.389 of 2019.

Today when this matter has come up for admission, we heard the learned counsel appearing for the petitioner in detail.

Ext.P2 is a copy of the petition in O.P.No.389 of 2019. It was filed under Section 7 and 25 of the Guardian and Wards Act, 1890. The petitioner seeks permanent custody of the minor child born in the wedlock of the petitioner and the respondent. The child is aged 11 years now. I.A.No.23 of 2022 was filed to recall PW1 who is the petitioner to give further evidence. The affidavit filed in support of I.A.No.23 of 2022 would show that the reason for which PW1 wants to give further evidence is to depose about immoral character of the respondent - mother.

The Family Court observed that there has not been any contention in the petition in O.P.No.389 of 2019 alleging unchastity against the respondent and therefore the request of the petitioner, PW1 to give evidence regarding that aspect, especially when entire evidence on his part has already been closed, cannot be allowed.

The learned counsel for the petitioner would submit that there is enough pleading in Ext.P2 petition and therefore the reasoning given by the Family Court is incorrect, It is averred in the petition- Ext.P2, that the respondent leads an immoral life. Apart from that, there has not been any details of such an allegation, stated in the petition. Unchastity is a serious allegation which can be entertained at a trial only if specific pleadings are furnished in the petition. A vague and wild allegation cannot be treated as sufficient pleading to allow a party to adduce evidence in support thereof.

Having regard to the nature of pleading in Ext.P2, as pointed out above, we are of the view that the petitioner cannot be allowed to adduce evidence with respect to such an allegation, particularly when the matter in question is regarding custody of an 11 year old child who has sufficiently grown up and can understand matters. In the said circumstances, we hold that there is no reason to interfere with the impugned order by this Court invoking the supervisory jurisdiction under Article 227 of the Constitution of India.

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 High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. 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 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.

Viewed in the light of the law laid down in the aforesaid decision, this petition deserves only to be dismissed. Hence this original petition is dismissed.