Santhoshkumar P.C. vs Director Genral Of Police, (Law And Order)

K. Vinod Chandran, J.

This is a writ petition where the petitioner alleged that his minor child is shifted from one place to another to avoid a Guardian and Wards petition

filed by the petitioner for custody of the minor child. The petitioner had approached the Family Court, Mavelikkara for custody, which was rejected on

the objection of the respondent mother that the child is not residing within the jurisdiction of Mavelikkara. This is why the present application before

the Family Court at Thiruvalla wherein was passed an ex parte judgment and decree and the issue is now pending in execution. The 4th respondent

had been consistently avoiding service, on account of which we directed the police to produce the child before us.

The child was produced before us and by order dated 14.01.2022 we directed the child to be given to the custody of the father, the petitioner herein

for a period of one week. We also directed that the child will be produced before the Family Court Thiruvalla on 21.01.2022. Considering the fact that

the child was discharged from a hospital, on the day on which he was produced here, we also directed the petitioner to produce the child before the

attending Physician of the hospital; the treatment records of which were marked as Ext.C1. We directed the Doctor's opinion to be produced before

us on today.

Today, the attending Physician's fitness certificate has been produced before us in original, across the Bar, which we mark as Ext.C2. The fitness

certificate dated 15.01.2022 opines that the child has recovered and is fit to be at home. The learned Counsel for the 4th respondent submits that by

virtue of a certificate issued by a Temple, there is a valid marriage between the petitioner and the 4th respondent. This fact is seriously disputed by the

petitioner. We are of the opinion that there is no cause for us to decide the issue of marriage which can be left to the appropriate forum. The learned

Counsel for the 4th respondent points out that earlier by order dated 14.01.20022 it was recorded that the petitioner and the 4th respondent were in a

live-in-relationship and hence the natural guardian is the mother. We make it clear that the said observation in order dated 14.01.2022 shall not govern

the adjudication of the issue, if it is raised before a competent forum. We cannot but observe that as of now we are only concerned with the custody

of the child; whose parentage is not in dispute. The petitioner and the 4th respondent admittedly are the parents of the child.

In the context of the allegations raised of the residence of the child being shifted to avoid adjudication of the custody dispute, we specifically asked

the 4th respondent as to her address and the residence of the child. The learned Counsel admits that it is within the jurisdiction of Mavelikkara. The

petitioner also does not have any dispute on that. But as of now, the matter is pending in execution before the Family Court Thiruvalla. Hence as

directed by us in order dated 14.01.2022 the child shall be produced before the Family Court, Thiruvalla or the Judge in charge on 21.01.2022. The 4th

respondent undertakes before us to enter appearance therein and also expresses the desire to file an application for setting aside the ex parte judgment

and decree. In such circumstance we direct that the Family Court, Thiruvalla or the Court in charge, will decide on the interim custody of the child on

21.01.2022 after interacting with the parents and the child. If an application is filed to set aside the judgment and decree the orders passed by the

learned Judge as to interim custody shall regulate custody till the application for setting aside the ex parte judgment is considered. We leave it to the

Court to adjudicate on that application. If the application is rejected, then necessarily execution has to be in accordance with the directions in the

judgment. If the application is allowed then considering the admitted position of the parties; the Family Court, Thiruvalla shall transfer the case to the

Family Court, Mavelikkara and till the matter is taken up by the Family Court, Mavelikkara the interim orders passed by the Court at Thiruvalla shall

regulate the issue of custody.

The writ petition (Crl.)is disposed of with the above directions.