R. Jayant Nair vs P. Jayasree Panickar

R. Basant, J.—This appeal is preferred by the appellant - father of a minor female child aged above 7 years aggrieved by the rejection of his

petition for custody of his daughter. When the appeal was filed, the child was in the custody of the original respondent i.e., the mother of the child.

During the pendency of this appeal, the mother of the child expired and the child continued to be in the custody of the additional 2nd respondent

i.e., the maternal grandfather of the child. Interim arrangements regarding custody were sought and this Court by order dated 18/8/09 as modified

by order dated 30/9/09 has made arrangements to ensure the visitorial rights of the appellant i.e., the father of the child. That arrangement has been

continuing in force. Directions were issued from time to time regarding custody of the child during intervening vacations also.

We have heard both counsel on merits in the appeal. The dispute now is as to whether the child must continue in the custody of the maternal

grandfather i.e., the additional 2nd respondent or must be left in the custody of the father of the child i.e., the appellant.

On this crucial aspect we find no evidence has been adduced by either side before the court below. The impugned order is one passed along

with several other connected matters all of which have now become irrelevant. On the precise question that arises for determination in this appeal

now we found that there is crucial and vital lack of evidence/materials. We requested the counsel and they also accepted that there is need to

adduce evidence on the disputed questions for a proper consideration and disposal of the issue that has been raised in this appeal now.

Accordingly, as directed by us, both sides have filed affidavits in lieu of chief-examination of the witnesses whom they want to examine. Both

sides have also produced documents in support of their respective contentions. Both counsel now agree that they do not want to adduce any

further evidence than the chief affidavits and the documents produced. However, both sides request that the deponents/witnesses who have filed

chief affidavits may be permitted to be cross-examined.

We are satisfied that for proper consideration and disposal of the issues raised in this appeal, which were not contemplated at the time when the

court below passed the impugned order, parties must be permitted to adduce proper evidence.

What course is to be followed by this Court is the next question. The learned Counsel for the appellant submits that the court below may be

directed to record the evidence in cross- examination and on the basis of such materials, this Court may dispose of the appeal. That would mean

that virtually on new materials the appellate court will have to take a decision. Having rendered our anxious consideration to the issue, we are

satisfied that the appropriate and ideal course to be followed is to direct the court below to dispose of O.P. No. 458/07 afresh in accordance with

law after considering the materials which the appellant/father of the child and the additional 2nd respondent - the maternal grand father of the child

want to rely on. The court below, we are satisfied, must be directed to dispose of the matter afresh on the materials after due cross-examination of

the deponents/witnesses. Aggrieved party can later come before this Court, if necessary. We are further satisfied that the court below must be

given time bound directions to dispose of O.P.458/07 afresh. We are further satisfied that the interim arrangement stipulated as per the orders

dated 18/8/09 and 30/9/09 must continue to remain in force until O.P. No. 458/07 is disposed of afresh.

In the result:

(a) This appeal is allowed in part.

(b) The impugned order is set aside.

(c) The court below is directed to dispose of O.P. No. 458/07 afresh on merits in accordance with law considering the nature of the contentions

which the appellant and the additional 2nd respondent herein want to advance.

(d) As agreed by both sides, we direct that the evidence placed before this Court in the form of affidavits in lieu of chief- examination of the

witnesses and the documents produced alone need be considered as additional evidence by the court below, of course, after giving parties

opportunity to cross-examine the deponents/witnesses.

(e) The parties shall appear before the court below on 15/11/10. The court below shall proceed with the matter day- to-day and shall dispose of

the case as expeditiously as possible - at any rate, prior to 10/12/10. Compliance shall be reported to this Court.

The Registry shall forthwith send back the records including the oral and documentary evidence placed before this Court by the rival contestants

in the form of affidavits in chief and documents. They must reach the Family Court prior to 15/11/10.

ORDER

Dated this the 8th day of October, 2010

We have heard both counsel. The learned counsel for the appellant prays that time may be granted to the appellant to adduce further evidence

under Order 41 Rule 27 in the form of affidavits of witnesses. We do certainly feel that further evidence may be necessary to resolve the

controversy between the parties. In these circumstances, we permit both sides to file whatever further evidence they want to adduce of witnesses

in the form of chief-affidavits before this Court by the next date of posting. Parties can request that such affidavits be received in evidence under

Order 41 Rule 27 in view of the changed circumstances.

Call on 18/10/10.

Dated this the 24th day of July, 2009

We have heard both counsel. The learned counsel for the appellant prays that time may be granted to the appellant to adduce further evidence

under Order 41 Rule 27 in the form of affidavits of witnesses. We do certainly feel that further evidence may be necessary to resolve the

controversy between the parties. In these circumstances, we permit both sides to file whatever further evidence they want to adduce of witnesses

in the form of chief-affidavits before this Court by the next date of posting. Parties can request that such affidavits be received in evidence under

Order 41 Rule 27 in view of the changed circumstances.

Call on 18/10/10.

Dated this the 24th day of July, 2009

The parties were referred to a Mediator; but after lunch, the Mediator has sent back a failure report to inform us that the mediation has not

succeeded.

Parties are assisted by sublime counsel and the learned counsel agreed that it will be worthwhile for the Court to further pursue the efforts for a

harmonious settlement. We have therefore interacted with the parties separately and together and in the presence of their counsel. We are happy to

record that the parties have now come to some understanding about the interim arrangements for the next four weeks. They have agreed as

follows:

(1) The child shall be taken to the house of Sri.T.B.Velappan Nair, the brother-in-law of the sister of the appellant on 26/7/09, 2/8/09, 8/8/09 and

16/8/09 by the additional respondent or his representative. She will be left at that house along with Leela - a maid attending on the child. The child

shall be permitted to interact with the appellant herein as also his relatives till 5 p.m. on such dates.

(2) The child shall not be taken out of the residential compound of Sri.T.B. Velappan Nair and the child shall be returned to the additional

respondent or his representative at 5 p.m. on those dates.

Call this appeal again on 18/8/09 for further directions. The parties shall be present with the child on that date.