S. Sabu, Sainaba Beevi and Sanfer Sha vs Ibrahim Kutty and Nabeesa Beevi

Pius C. Kuriakose, J.—Under challenge in this original petition filed by the respondents in O.P. No. 213/2010, who are respectively the husband, mother-in-law and brother-in-law of one Nejumunnisa challenging Exts.P3 and P4 orders passed by the Family Court, Alapuzha in two separate interlocutory applications filed by them in O.P. No. 213/2010. The above original petition (O.P. 213/2010) is filed by the parents of Nejumunnisa claiming return of the gold ornaments and the cash which, according to them, was entrusted with their son-in-law and his parents at the time of the marriage of their daughter. Ext.P4 is passed in I.A. No. 1327/2012. The prayer in that I.A. was that the trial of O.P. No. 213/2010 be kept in abeyance till the final disposal of Session Case No. 1002/2010 pending before the Addl. Sessions Court, Fast Track - 1 Alappuzha, wherein offences under Sections 498A, 304B read with Section 34 IPC is pending against the petitioners. Ext.P3 is passed in I.A. No. 1310/2010. The prayer in I.A. No. 1310/2012 was that in C.M.P. No. 3152/2009 filed by the deceased Najumuneesa under the provisions of Protection of Women from Domestic Violence Act while she was alive be summoned as a document in O.P. No. 213/2012. The learned Family Court dismissed the above I.A. by passing Ext.P3 observing that the evidence in the original petition is over and that the document sought to be summoned is not relevant for deciding the matter in controversy in the original petition. It is also observed that the petitioners could have obtained certified copy of the complaint and produced the same before the court so as to enable the court to pursue the document. In Ext.P4, the stay sought for was declined taking the view that the issues to be considered by the Session Court in I.A. No. 1002/2012 and by the Family Court in O.P. No. 213/2010 are entirely different. It is also observed by the Family Court in Ext.P4 that I.A. has been filed by the petitioners after the entire trial was over. Exts.P3 and P4 are challenged by the petitioners under various grounds and Sri. George Mathew learned counsel for the petitioners addressed submissions before us based on those grounds.

Even though Sri. George Mathew was very persuasive in his submissions, having gauged Exts.P3 and P4 by the yardsticks, which are applicable to the exercise of the visitorial jurisdiction of this court under Article 227, it is very clear to us that neither Ext.P3 nor Ext.P4 are liable to be corrected under the above jurisdiction which is not expected to be invoked for correcting each and every wrong order passed by a Subordinate Judicial Authority. The jurisdiction under Article 227 will be invoked only when it can be said that the order passed by a Subordinate Judicial Authority is per se illegal in the sense that the same offends the clear provision of law, either statutory or settled or is passed without any jurisdiction or when it can be said that the order can be branded as a perverse order in the sense that such an order will not be authored by any person having reasonable learning and training in law. We are sure that Exts.P3 and P4 are not liable to be visited under Article 227. Even as we confirm Exts.P3 and P4 and dismiss this original petition, we direct the learned Judge of the Family Court to grant to the petitioners seven more days from today for obtaining and producing a certified copy of C.M.P. No. 3152/2009 of the JFCM Alappuzha as additional item of evidence in their case. Relevancy and probative value of the document may be considered by the learned Judge on pursuing the document. We are sure that the Session Judge, who is trying S.C. No. 1002/2010, is not going to be influenced by any decision which may be taken by the Family Court in O.P. No. 213/2010.

With the above observations, we dismiss this original petition.