Remla Beevi vs Shajahan

R. Basant, J.—This writ petition is filed by the wife of the divorced husband. Divorce is effected by unilateral pronouncement of talaq on 04/6/10. The husband filed an application for custody of two minor children - both boys aged 6 years and 4 years. By the impugned ex parte order, the Family Court directed that the interim custody of both the children be handed over to the respondent/father.

The petitioner claims to be aggrieved by the impugned order. According to her, the impugned ex parte order happened to be passed under strange circumstances resulting in failure and miscarriage of justice. The Family Court, Kottarakkara, was not sitting on the relevant date. The petitioner did not know that the said petition is likely to be called before the court which was holding charge. Unfortunately, without any specific notice to the petitioner, the interim application happened to be called before the court holding charge and the impugned ex parte order happened to be filed. Without giving opportunity to the petitioner to raise any contentions and without considering any such contentions, the Family Court had proceeded to pass the impugned ex parte order whereunder custody of young children aged 4 years and 6 years which as per personal law applicable to the parties legitimately belongs to the petitioner has been denied to her. It is prayed that the extraordinary constitutional jurisdiction under Article 227 of the Constitution may be invoked to set aside the impugned order.

The respondent has entered appearance. The learned Counsel for the respondent points out that the impugned order being an ex parte order, the petitioner''s grievance that she was wrongly set ex parte must legitimately be raised before the Family Court.

The technicality notwithstanding, we are satisfied that the impugned order warrants interference as on the face of it amounts to failure and miscarriage of justice. The divorced mother has been deprived of the custody of her two minor children aged 4 years and 6 years without and before hearing her and considering her objections. We are satisfied that the impugned order warrants interference.

In the result:

(a) This writ petition is allowed.

(b) The impugned order is set aside.

(c) The parties are directed to appear before the Family Court on 18/9/10.

A copy of this judgment shall be handed over to the learned Counsel for the petitioner who shall produce the same before the Family Court on that date i.e., 18/9/10. The Family Court shall proceed to dispose of I.A. No. 1842/10 on merits in accordance with law as expeditiously thereafter as possible.