Sheela P.L. vs Manikandan

K.M. Joseph, J.—Petitioner challenges Ext.P2 order passed in I.A. 3350/2011 in OP. 1177/2011 by the Family Court, Palakkad.

Petitioner is the wife of the respondent. They have a 7 year old daughter. There was a writ petition, W.P. (Crl.) 373/2011 before this Court alleging that the minor child was under illegal detention. The parties were relegated to the Family Court. Thereafter, the respondent filed OP. 1177/2011 before the Family Court, Palakkad as Ext. P1. He has also filed I.A. 3350/2011 praying for interim custody of the child. According to the petitioner, petitioner appeared as directed by this Court before the Family Court. It is on her appearance without affording a chance to file counter statement, the Family Court allowed the application and custody of the child was entrusted to the respondent by the impugned order, it is the petitioner''s case. We heard the learned counsel for the petitioner and learned counsel for the respondent. Learned counsel for the respondent pointed out that the interlocutory application is not closed and that the petitioner did not file any counter to the application till date and it is still open to the petitioner herein to file counter and to get the matter agitated, but, the petitioner has not chosen to do so. We have called for a report. The following is the report.

As directed, contacted the Family Court, Palakkad. The Sheristadar, after verification, informed that the child was produced on 31.12.2011 and allowed to have interaction with respondent till 4 p.m. The child was further directed to be produced on 7.1.2012. On 7.1.2012 also, the child was produced and respondent was allowed to have interaction with the child before the Sheristadar and thereafter the child was allowed to be taken back by the mother. The I.A is not closed. It is not posted to any specific date.

According to the petitioner, by the impugned order, when she appeared before the Family Court without giving an opportunity to file counter as stated the order was passed giving interim custody to the respondent. It is stated that only for the reason the observation is made by the High Court that since the petitioner is pregnant through another person continued custody of the child with the mother will not be proper, the petitioner was directed to give custody of the minor child. According to the petitioner, the Family Court should have considered the matter in accordance with law.

Since the interlocutory application is not as such closed, we are of the view that, we can dispose of the original petition by directing that if the petitioner files counter affidavit to the interlocutory application, the same will be considered and appropriate orders be passed by the Family Court keeping in view the principles governing the matter and the facts of the case also. The original petition is disposed of as follows:

The parties will appear before the Family Court, Palakkad on 29.2.2012. If the petitioner files counter affidavit before the said date, the Family Court, Palakkad will hear the parties and may also interact with the child if it feels that in the interest of justice that it should be done so and pass appropriate orders within a period of three weeks from 29.2.2012 keeping in view the principles governing the matter and the facts.