Mohanan, J.
As the subject matter of the above matters are with respect to the custody of the minor daughter of the petitioner in W.P.(Crl) No.418/14 and the 1st petitioner in O.P.(F.C.) No.503/14, whose name is Adhwaitha, aged 4 years, and as the question of facts and law involved are identical, we heard the above matters together and being disposed by this common judgment.
2. W.P.(Crl.) No.418/14 is moved under Article 226 of the Constitution of India by the petitioner, who is the mother of minor child named Adhwaitha, who is now at the age of 4 years and is a student of LKG standard in Rehobath CBSE School, Nellikkunnu. According to the petitioner, she was married by the 6th respondent in this writ petition in accordance with the custom and rights prevailing among Ezhava community in the year 2009. In the said wedlock, the above named girl child was born. According to the petitioner, subsequently difference of opinion occurred among the spouse which ultimately led to various matrimonial disputes. According to the petitioner herein, she preferred GOP No.875/13 before the Family court, Thrissur, seeking permanent custody of the minor child and in the above OP she had also preferred I.A.No.2073/14 for the interim custody of the child, which according to her, was allowed by the Family court. It is also the case of the petitioner that she had preferred another petition before the Family court for the return of gold ornaments etc. It is also learnt that the 6th respondent has also filed another petition before the Family court, Thrissur, as OP(Guardian) No.763/14 for permanent custody of the girl child. According to the petitioner herein, as the 6th respondent/her husband had some illicit relationship with one Philipine lady named Joyce Bellano Barramed, the petitioner herein is living separately and she is now with her mother. Thereafter, connected with the marriage of the sister of the 6th respondent, there was some conciliation talks were occurred and pursuant to that, the petitioner joined with the 6th respondent and lived in her matrimonial home, but however, according to the petitioner, the respondent nos.5 and 6 again started to irritate the petitioner and finally the 5th respondent left the house with the child. It is also the grievance of the petitioner that even though she approached the Family court seeking a direction against respondent nos.5 and 6 for producing the child and though the Family court issued a direction to that effect, the child was not produced and hence she approached this Court by filing the above writ petition with a prayer to issue a writ of habeas corpus to produce the body of the daughter of the petitioner by name Adhwaitha, who was in the illegal detention of respondent nos.5 and 6, before this Court and set her free.
3. O.P.(F.C.) No.503 of 2014 is filed by the father and maternal grandmother of the said girl child, who are respectively respondents 5 and 6 in the above writ petition, challenging the orders namely I.A.Nos.2073/14, 3749/14 and 3750/14 in OP (Guardian) No.875/14 of Family court, Thrissur by which the Family court has ordered to produce the child in the Family court. According to the petitioners in the original petition, the 1st petitioner filed OP (Guardian) No.763/14 before the court below to declare the 1st petitioner as permanent guardian of the minor child and also prayed to restrain the respondents and their henchmen from forcibly taking the minor child from the custody of the petitioners. He had also filed Ext.P2 petition seeking an order of injunction restraining respondents and their henchmen from forcibly taking the child. According to the petitioners, the respondent has not filed any counter and simply sought adjournments under the guise of filing counter. The other grievance projected by the petitioners is that while the above O.P. preferred by the 1st petitioner is pending, the respondent who is the mother of the child preferred OP (Guardian)No.875/14 before the very same Family court, seeking custody of the minor child and for declaring herself as the permanent guardian of the minor child. She has also filed a series of petitions for getting interim custody of the child with police assistance. According to the petitioners herein, while the injunction petitions filed by the 1st petitioner are pending for the interim custody of the child, the court below issued an exparte order against the petitioner to produce the child in the Family court, Thrissur. So, the prayer in this O.P. is to quash Exts.P5, P5(a) and P5(b) orders issued by the Family court with respect to the production and custody of the child.
4. We heard the learned counsel appearing for the parities in the above cases. We had interacted with the Ward named Adhwaitha and we had also interacted with the mother of the said child as well as the paternal and maternal grandmothers of the ward.
5. In the light of the facts and circumstances involved in the case and in view of the submissions of the learned counsel for the parties and on the basis of the outcome of the interaction with the parties, it can be seen that the 1st petitioner in O.P.No.503/14, who is the father of the Ward and the husband of the petitioner in the writ petition, is not in Station and he is working in abroad. The petitioner in the above writ petition, Smt.Pravitha M.P., the mother of the ward is readily available in the station. It is also a fact that both the parties have already approached the Family court by filing various petitions for declaring them as permanent guardian of the said ward. Though both the father and mother approached the Family court by filing petitions, the pleadings in the above cases are not complete and the Family court is not in a position to proceed with the trial of those cases at present.
6. Under the above circumstances, we are of the view that, instead of entering into the merits of the rival contentions and claim by this Court, the parties can be relegated to approach the Family court and pursue their remedies in the said court, for which, they have already filed petitions. However, considering the welfare of the child, we are of the view that, when the natural guardian, the mother of the child, is readily available, it is not proper to send the ward along with the paternal grandmother. Therefore, for the time being, the custody can be given to the mother - the petitioner in the writ petition. At the same time, the visitorial right of the 2nd petitioner in OP(F.C.) No.503/14, who is paternal grandmother of the child, can be reserved. In case, the father of the ward want to have the interim custody or want to see the child when he is available in station, the Family court, Thrissur, can be authorised to pass appropriate orders, in case such a contingent arose.
In the result, the above writ petition as well as the original petition are disposed of, relegating the parties to approach the Family court, Thrissur, to pursue the petitions which they have already filed in that court, claiming permanent custody of the child. For the time being, the daughter of the 1st petitioner in OP(F.C.)No.503/14 and the petitioner in the writ petition, is sent along with her mother Smt.Pravitha M.P., as an interim measure, who is directed to take steps forthwith, for the continuation of the studies of the child and other welfare measures for the child. The visitorial right of the 2nd petitioner in OP (F.C.) No.503/14, who is the paternal grandmother of the girl child, to visit the ward in the house of the mother of the ward is reserved. In case the father of the child, the 1st petitioner in the above original petition arrive and available in station and wants to have the interim custody or to get the visitorial right, he can very well approach the Family court with such a prayer and in case such a petition is filed, the Family court, Thrissur, is directed to consider the same and pass appropriate orders in accordance with law and considering the welfare of the child. On completing the pleadings in the Original petitions (Guardian) filed by the parties, the learned Judge of the Family court is directed to expedite the trial in accordance with law and procedure.
Sd/-
V.K.MOHANAN, Judge.
ami/ //True copy// P.A. To Judge Sd/-
K.HARILAL, Judge.