Kerala High CourtMeena Cherian vs Reji M. Eason on 1 March, 2023Author:Anil K.NarendranBench:Anil K.NarendranIN THE HIGH COURT OF KERALA AT ERNAKULAM\n                           PRESENT\n        THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN\n                              &\n       THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR\n WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA,\n                            1944\n                  O.P.(FC)NO.723 OF 2022\n AGAINST THE ORDER/JUDGMENT DATED 28.03.2022 IN I.A.NO.11 OF\n 2021 IN O.P.(GW) NO.418 OF 2021 OF THE FAMILY COURT, KOLLAM\nPETITIONER/PETITIONER:\n\n\n         MEENA CHERIAN, AGED 52 YEARS\n         D/O. J.CHERIYAN MANAPOYKAYIL VEEDU,\n         PADAPPAKKARA PERAYAM, MULAVANA VILLAGE, KOLLAM,\n         PIN - 691503\n         BY ADVS.\n         JOHNSON GOMEZ\n         S.BIJU (KIZHAKKANELA)\n         SANJAY JOHNSON\n         JOHN GOMEZ\n         ARUN JOHNY\n\n\nRESPONDENTS/RESPONDENTS:\n\n\n    1    REJI M. EASON, AGED 55 YEARS,\n         S/O A.E EASO MARUTHOOR HOUSE, KUMBAZHA P.O.\n         PATHANAMTHITTA TALUK, PATHANAMTHITTA PIN\n         689653. NOW RESIDING AT 42, SILENT CIRCLE\n         DRIVE, SUGAR LAND, TEXAS STATE, U.S.A ZIP CODE\n         77498 REPRESENTED BY HIS POWER OF ATTORNEY\n         HOLDER MR. E.I.JOSEPH,S/O G.IDICHERIA RESIDING\n         AT EDATHARAYIL HOUSE KUMBAZHA P.O\n         PATHANAMTHITTA, PIN - 689653\n\n    2    GEETHA CHERIYAN, AGED 49 YEARS,\n         D.O. STELLAMA SANGEETHAM, NAMBARATHUMUKKU,\n         THRIKKADAVOOR VILLAGE, KOLLAM TALUK,\n         PIN - 691601\n OP(FC) No.723 of 2022\n                                      2\n\n              R1 BY ADV.AJIT JOY,\n              R2 BY ADV.SAJU J PANICKER\n       THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON\n01.03.2023,        THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE\nFOLLOWING:\n OP(FC) No.723 of 2022\n                                          3\n\n                             JUDGMENTAnil K.Narendran, J.The petitioner, who filed O.P.(GW) No.418 of 2021 before\n\nthe Family Court, Kollam, seeking permanent custody of the\n\nminor child, is before this Court in this original petition invoking\n\nthe supervisory jurisdiction of this Court underArticle 227of the\n\nConstitution of India, seeking an order to set aside Ext.P9 order\n\ndated 28.03.2022 of the Family Court in I.A.No.11 of 2021 in\n\nO.P.(GW) No.418 of 2021 and to allow the said interlocutory\n\napplication, i.e., Ext.P7 interlocutory application, which was one\n\nfiled seeking an order directing the respondents herein to\n\nproduce the minor child before the court, in order to ascertain\n\nher present physical condition and mental status through a\n\nboard consisting of a team of competent doctors. The petitioner\n\nhas also sought for an order directing the Family Court, Kollam\n\nto consider Exts.P11 and P13 interlocutory applications within a\n\ntime frame to be fixed by this Court. The petitioner filed Ext.P11\n\ninterlocutory      application,   i.e.,       I.A.No.18    of   2022,      seeking\n\ninterim relief similar to that sought for in I.A.No.11 of 2021 and\n\nExt.P13      interlocutory   application,        i.e.,    I.A.No.19   of    2022,\n\nseeking an order directing the service provider of the mobile\n\nnumber of the minor ward to provide a certificate before theOP(FC) No.723 of 20224Family Court revealing the exact location of the mobile phone on\n\n07.03.2022, the date on which the Family Court interacted with\n\nthe minor child over the mobile phone. The 1 st respondent filed\n\nExt.P8 objections to Ext.P7 interlocutory application. Pursuant to\n\nthe direction contained in the judgment of this Court dated\n\n03.03.2022 in Mat.Appeal No.126 of 2022, the Family Court\n\ninteracted with the child through online mode, on 07.03.2022, to\n\nascertain her wish. After considering the rival contentions, the\n\nFamily Court rejected Ext.P7 interlocutory application, i.e.,\n\nI.A.No.11 of 2021 in O.P.(GW) No.418 of 2021 by Ext.P9 order\n\ndated 28.03.2022. Feeling aggrieved, the petitioner-mother is\n\nbefore      this   Court   in   this   original   petition,   invoking   the\n\nsupervisory jurisdiction of this Court underArticle 227of the\n\nConstitution of India.4.     On 27.12.2022, when this original petition came up\n\nfor admission, this Court admitted the matter on file and issued\n\nnotice to the respondents by speed post.5.     Heard the learned counsel for the petitioner, the\n\nlearned counsel for the 1st respondent and the learned counsel\n\nfor the 2nd respondent.6.     The issue that arises for consideration in this original\n\npetition is as to whether any interference is required on Ext.P9OP(FC) No.723 of 20225order dated 28.03.2022 of the Family Court, Kollam, whereby\n\nExt.P7 interlocutory application, i.e., I.A.No.11 of 2021 in O.P.\n\n(GW) No.418 of 2021, stands rejected for the reason stated\n\ntherein.7.     The learned counsel for the petitioner-mother would\n\ncontend that Ext.P9 order of the Family Court, Kollam is per se\n\narbitrary and illegal, which warrants interference in this original\n\npetition. Per contra, the learned counsel for the 1 st respondent\n\nwould contend that the Family Court rightly rejected Ext.P7\n\ninterlocutory application, stating valid reasons in Ext.P9 order,\n\nwhich requires no interference in this original petition.8.     The       petitioner-mother   filed   Ext.P7   interlocutory\n\napplication seeking an order directing the respondents to\n\nproduce the minor child aged 17 years before the Family Court,\n\nin order to ascertain her present physical condition and mental\n\nstatus through a board consisting of a team of competent\n\ndoctors. The 1st respondent-father opposed the relief sought for\n\nin Ext.P7 interlocutory application by filing Ext.P8 objections.\n\nThe Family Court interacted with the child through online mode,\n\non 07.03.2022, to ascertain her wish, pursuant to the direction\n\ncontained in the judgment of this Court dated 03.03.2022 in\n\nMat.Appeal No.126 of 2022. In Ext.P9 order dated 28.03.2022OP(FC) No.723 of 20226in I.A.No.11 of 2021 in O.P.(GW) No.418 of 2021, the Family\n\nCourt found that the minor child is safe in USA along with her\n\nfather and her sister.            She is doing her education there\n\npeacefully. The Family Court considered various aspects in detail\n\nin paragraph 12 of Ext.P9 order, in order to arrive at a\n\nconclusion that, bringing the minor child to India will affect her\n\nsafety and security and her interim custody cannot be given to\n\nthe petitioner-mother. Though the Family Court dismissed Ext.P7\n\ninterlocutory application, the petitioner-mother is permitted to\n\ncontinue to chat with the minor child for 10 minutes every day,\n\nat the convenience of the minor, subject to the condition\n\nstipulated in paragraph 14 of Ext.P9 order. The reasoning of the\n\nFamily Court in Ext.P9 order for rejecting Ext.P7 interlocutory\n\napplication filed by the petitioner-mother is neither perverse nor\n\npatently illegal and it cannot also be said that while passing such\n\nan   order,     the     Family   Court       has   committed   any material\n\nirregularity.9.Article 227of the Constitution of India deals with\n\npower of superintendence over all courts by the High Court.\n\nUnder clause (1) ofArticle 227of the Constitution, every High\n\nCourt shall have superintendence over all courts and tribunals\n\nthroughout the territories in relation to which it exercisesOP(FC) No.723 of 20227jurisdiction.10.InShalini Shyam Shetty v. Rajendra Shankar\n\nPatil[(2010) 8 SCC 329] the Apex Court, while analysing the\n\nscope and ambit of the power of superintendence underArticle\n\n227of the Constitution, held that the object of superintendence,\n\nboth administrative and judicial, is to maintain efficiency,\n\nsmooth and orderly functioning of the entire machinery of justice\n\nin such a way as it does not bring it into any disrepute. The\n\npower of interference underArticle 227is to be kept to the\n\nminimum to ensure that the wheel of justice does not come to a\n\nhalt and the fountain of justice remains pure and unpolluted in\n\norder to maintain public confidence in the functioning of the\n\ntribunals and courts subordinate to the High Court.11.InJai Singh v. Municipal Corporation of Delhi[(2010) 9 SCC 385], while considering the nature and scope of\n\nthe powers underArticle 227of the Constitution of India, the\n\nApex Court held that, undoubtedly the High Court, underArticle\n\n227of the Constitution, has the jurisdiction to ensure that all\n\nsubordinate       courts,   as   well   as   statutory or   quasi-judicial\n\ntribunals exercise the powers vested in them, within the bounds\n\nof their authority. The High Court has the power and the\n\njurisdiction to ensure that they act in accordance with the wellOP(FC) No.723 of 20228established principles of law. The exercise of jurisdiction must be\n\nwithin the well recognised constraints. It cannot be exercised\n\nlike a 'bull in a china shop', to correct all errors of the judgment\n\nof a court or tribunal, acting within the limits of its jurisdiction.\n\nThis correctional jurisdiction can be exercised in cases where\n\norders have been passed in grave dereliction of duty or in\n\nflagrant abuse of fundamental principles of law or justice.12.InK.V.S.   Ram   v.   Bangalore   Metropolitan\n\nTransport Corporation[(2015) 12 SCC 39] the Apex Court\n\nheld that, in exercise of the power of superintendence underArticle 227of the Constitution of India, the High Court can\n\ninterfere with the order of the court or tribunal only when there\n\nhas been a patent perversity in the orders of the tribunal and\n\ncourts subordinate to it or where there has been gross and\n\nmanifest failure of justice or the basic principles of natural\n\njustice have been flouted.13.InSobhana Nair K.N. v. Shaji S.G. Nair[2016 (1)\n\nKHC 1] a Division Bench of this Court held that, the law is well\n\nsettled by a catena of decisions of the Apex Court that in\n\nproceedings underArticle 227of the Constitution of India, this\n\nCourt cannot sit in appeal over the findings recorded by the\n\nlower court or tribunal and the jurisdiction of this Court is onlyOP(FC) No.723 of 20229supervisory in nature and not that of an appellate court.\n\nTherefore, no interference underArticle 227of the Constitution\n\nis called for, unless this Court finds that the lower court or\n\ntribunal has committed manifest error, or the reasoning is\n\npalpably perverse or patently unreasonable, or the decision of\n\nthe lower court or tribunal is in direct conflict with settled\n\nprinciples of law.14.In view of the lawlaid down inthe decisions referred\n\nto supra, the High Court in exercise of its supervisory jurisdiction\n\nunderArticle 227of the Constitution of India cannot sit in appeal\n\nover the findings recorded by a lower court or tribunal. The\n\nsupervisory jurisdiction cannot be exercised to correct all errors\n\nof the order or judgment of a lower court or tribunal, acting\n\nwithin the limits of its jurisdiction. The correctional jurisdiction\n\nunderArticle 227can be exercised only in a case where the\n\norder or judgment of a lower court or tribunal has been passed\n\nin grave dereliction of duty or in flagrant abuse of fundamental\n\nprinciples of law or justice. Therefore, no interference underArticle 227is called for, unless the High Court finds that the\n\nlower court or tribunal has committed manifest error, or the\n\nreasoning is palpably perverse or patently unreasonable, or the\n\ndecision of the lower court or tribunal is in direct conflict withOP(FC) No.723 of 202210settled principles of law or where there has been gross and\n\nmanifest failure of justice or the basic principles of natural\n\njustice have been flouted.15.    Viewed in the light of the lawlaid down inthe\n\ndecisions referred to supra, in exercise of the supervisory\n\njurisdiction underArticle 227of the Constitution of India, this\n\nCourt is not sitting in appeal over Ext.P9 decision taken by the\n\nFamily Court in Ext.P7 interlocutory application. As already\n\nnoticed, the reasoning of the Family Court in Ext.P9 order for\n\nrejecting Ext.P7 interlocutory application filed by the petitioner-\n\nmother is neither perverse nor patently illegal and it cannot also\n\nbe said that while passing such an order, the Family Court has\n\ncommitted any material irregularity, warranting interference of\n\nthis Court, in exercise of the supervisory jurisdiction underArticle 227of the Constitution of India.In the result, this original petition fails and the same is\n\naccordingly dismissed.Sd/-ANIL K. NARENDRAN, JUDGE\n\n\n                                           Sd/-P.G. AJITHKUMAR, JUDGE\njgOP(FC) No.723 of 202211APPENDIX OF OP (FC) 723/2022\n\nPETITIONER EXHIBITS\nExhibit P1         A TRUE COPY OF THE O.P(G&W) NO. 418/\n                   2021 FILED BY THE PETITIONER BEFORE THE\n                   HON'BLE FAMILY COURT KOLLAM\nExhibit P2         A TRUE COPY ORDER NO. CWC/KLM/7815/21\n                   DATED 23/02/2021 PASSED BY THE CHILD\n                   WELFARE COMMITTEE KOLLAM\nExhibit P3         A TRUE COPY OF THE ORDER NO.CWC/KLM/7815/21 DATED 12/07/2021 PASSED\n                   BY CHILD WELFARE COMMITTEE KOLLAM\nExhibit P4         A TRUE COPY OF THE OBJECTION DATED23/07/2021 FILED BY THE RESPONDENT NO. 1TO EXT P1 ORIGINAL PETITION\nExhibit P5         A TRUE COPY OF THE ORDER DATED\n                   10/12/2021 IN IA NO 14/2021 IN OP(G&W)NO. 418/2021Exhibit P6         A TRUE COPY OF THE JUDGEMENT DATED\n                   3/3/2022 IN MAT APPEAL NO. 126/2022\n                   BEFORE THIS HON'BLE COURT\nExhibit P7         A TRUE COPY OF I.A NO. 11/2021 IN O.P\n                   (G&W) 418/2021 FILED BY THE PETITIONER\n                   BEFORE THE FAMILY COURT KOLLAM\nExhibit P8         A TRUE COPY OF THE OBJECTION FILED BY\n                   THE RESPONDENT NO.1 TO I.A NO. 11/2021\n                   IN O.P (G&W) NO.418/2021, BEFORE THE\n                   FAMILY COURT KOLLAM\nExhibit P9         CERTIFIED COPY OF ORDER DATED 28.03.2022\n                   IN I.A.NO.11 OF 2021 IN O.P.(GW) NO.418\n                   OF 2021 OF THE FAMILY COURT, KOLLAM\nExhibit P10        A TRUE COPY OF THE IA NO. 13 OF 2021 IN\n                   O.P (G&W) 418/2021 FILED BY THE\n                   PETITIONER BEFORE THE FAMILY COURT\n                   KOLLAM\nExhibit P11        A TRUE COPY OF I.A NO.18 /22 IN O.P\n                   (G&W) NO.418/2021 FILED BY THE\n                   PETITIONER\nExhibit P12        A TRUE COPY OF OBJECTION IN I.A\n                   NO.18/2022 FILED BY THE RESPONDENT\nExhibit P13        A TRUE COPY OF THE I.A NO.19/2022 IN O.P\n                   (G&W) NO. 418/2021 FILED BY THE\n                   PETITIONER BEFORE THE HON'BLE FAMILY\n                   COURT KOLLAM\nExhibit P14        A TRUE COPY OF THE OBJECTION TO I.A\n                   NO.19/22 IN O.P (G&W) NO. 418/2021 FILED\n                   BY THE RESPONDENTOP(FC) No.723 of 202212Exhibit P15             A TRUE COPY OF THE I.A NO.12/2021 IN O.P\n                        (G&W) NO.418/2021 FOR AMENDING THE\n                        ORIGINAL PETITION FILED BY THE\n                        PETITIONER\nExhibit P16             A TRUE COPY OF THE AMENDED PETITION IN\n                        O.P (G&W) NO. 418 OF 2021 BEFORE THE\n                        FAMILY COURT KOLLAM