Mohanan, J.
As the subject matter of the above writ petition and the original petition is one and the same, that with respect to the custody of a minor child namely Deva Parvathy, the daughter of the petitioner and the 3rd respondent/father in the above original petition, and particularly the facts and circumstances involved are identical and inter connected, and also for the reason that the legal questions involved are identical, the above matters are heard together and being disposed of by this common judgment.
2. O.P.(F.C.)No.447 of 2014 is filed by the mother of the said child, who is the 1st respondent in I.A.No.3242/14 and the petitioner in I.A.No.3315/14, before the Family court, Ernakulam, challenging the common order dated 2.9.2014 by which the Family court issued production of warrant of the minor girl child by the 1st respondent and guardian of the 1st respondent and granting temporary custody of the minor child to the petitioners therein. Whereas W.P.(Crl.) No.372/14 is preferred by the maternal grand parents of the said child under Article 226 of the Constitution of India alleging that the said child is under the illegal custody of the mother of the child, as she failed to produce the child before the Family court, Ernakulam, in spite of a positive direction and therefore it is prayed to issue a writ of habeas corpus or any other appropriate writ, directions or orders commanding respondents 1 and 2 to produce the body of the girl child namely, Deva Parvathy before this Court by releasing her from the illegal custody of the 3rd respondent. The 3rd respondent in the above writ petition is the mother and Sri.Sajay A.K. is the father of the detenue, who is respectively the 2nd and 3rd respondent in I.A.Nos.3242/14 and 3315/14 in O.P.No.1641/14.
3. As directed by this Court, the detenue was produced before this Court on 14.11.2014 and we have interacted with the parties present. We have also interacted with the detenue as well as her brother who was also present. Though we heard the contesting parties in person and tried to find out any possibility for settlement, the same resulted in vain. Therefore, by order dated 14.11.2014, the Registry was directed to post the above matters for further consideration in the open Court and thus the matter has came up for consideration on today.
4. We heard Adv.Sri.P.Viswanathan, the learned counsel for the petitioner in the original petition, who is the 3rd respondent in the writ petition and Adv.Smt.Sumathi Dandapani who is appearing for the petitioners in the writ petition as well as for the respondents in the original petition.
5. Both the counsel while justifying the present stand of the parties to the dispute, have submitted various facts and circumstances which lead to the filing of the above writ petition as well as the original petition.
6. Having heard the counsel appearing for the opposite parties and having regard to the facts and circumstances involved in the case and on perusal of documents on record, it can be seen that the marital relationship between the parents of the detenue is strained and various litigations are pending in various courts including criminal cases. At present, the son of the contesting parties, who is the brother of the detenue, is residing along with his maternal grand parents and the detenue Deva Parvathy is now with her mother/the petitioner in the above original petition. As we have indicated, the original petition is filed challenging the common order dated 2.9.2014 in O.P.No.1641/14, which is a petition filed under section 12 of the Guardian and Wards Act, 1890, by the maternal grand parents of the said child, seeking permanent custody of the girl child and to appoint them as her guardian. The said original petition is pending before the Family court, Ernakulam. During the pendency of the above original petition, they have filed I.A.No.3242/14 for the interim custody of the said child. Challenging the jurisdiction of the court to try such a petition filed by the maternal grand parents of the child, the respondents therein filed I.A.No.3315/14. It is the above two petitions that were considered by the court below together and passed the common order on 2.9.2014, which is impugned in the above original petition. Going by the above order, it can be seen that after having considered the various provisions of the above referred Act and the settled position of law, the learned Judge of the Family court directed the 1st respondent therein, who is the mother of the said child, to produce the child before that court, but it is observed that the said order of the learned Judge was flouted by the 1st respondent and the child was not produced. According to the learned Judge, the documentary evidence produced by the petitioners therein shows that the mother of the child, who is the 1st respondent, is suffering from mental disease. However, the above factual inputs in the said petitions are supported by certain documents and the contentions advanced by the petitioners therein are not controverted by the respondent by filing any counter affidavit etc. The Family court after having considered the contentions found that the said court has jurisdiction to entertain such petitions considering the welfare of the child. The Family court has also found that the maternal and paternal grand parents of the children are present before the said court and all of them in one voice asserted that the children will not be safe in the hands of the 1st respondent/mother of the children. Thus the learned Judge passed the order which we referred above. It is an undisputed fact that, despite the above direction and detailed order, the 1st respondent/petitioner in O.P.No.1641/14, has not complied with the said direction and the child was not produced before the court. It is also relevant to note that the learned Judge of the Family court has no occasion to interact with the child. Thus, in spite of the above referred order, without producing the child before the said court, the respondent in the above order approached this Court by filing O.P.(F.C.)No.447/14. Under the above circumstances, we are of the view that, it is for the petitioner in the above original petition to firstly comply with the direction issued by the Family court and to co- operate with the proceedings of the said court and to convince the court supported by any reason justifying her stand to retain the child with her. That opportunity was not availed by the petitioner in the above original petition. Therefore, as suggested by the learned counsel appearing for the petitioner in the original petition, it is for the petitioner to appear before the court below and to file a counter affidavit if any and try to convince the court about her stand and contentions.
7. At this juncture, we are constrained to observe that when we interacted with the parties in our Chambers on 14.11.2014, the detenue Deva Parvathy submitted before us that she wants to go along with his brother Adideva. It is also relevant to note that the proceedings in our Chambers started by 9.30 a.m. on 14.11.2014 and it prolonged to 11.30 a.m. on that day and thereafter when we proceeded to assume the morning session in the Court, the children demanded before us that they want to chat with each other and play, and accordingly we permitted them to sit together in our Chambers till 1 p.m. In the meanwhile, they have chatted each other and played and took food together in our Chambers. Thereafter, when we came back to the Chamber after the morning session, the detenue Deva Parvathy requested us to permit her to go along with her brother ; but her mother was not willing for the same.
Hence, we passed the order dated 14.11.2014 to post the matter on today for further consideration.
8. Since O.P.No.1641/14 is pending before the Family court, Ernakulam, and the Family court seized up the matter, we are of the view that the parties can be relegated to the Family court, Ernakulam, to co-operate with the proceedings in that court. We have no hesitation to observe that the learned Judge of the Family court was constrained to issue production warrant for producing the child only because of the nefarious attitude of the petitioner in the original petition, who is the mother of the child and therefore we find no fault with the court below in its order impugned in the above original petition. However, the facts remained are that the mother of the child and the child had not appeared in person before the said court and no counter is filed. It is for the Family court to pass appropriate orders regarding the custody of the child.
In the result, O.P.(F.C.)No.447/14 and WP(Crl) No.372/14 are disposed of relegating the parties to the Family court, Ernakulam. The petitioner in O.P.No.447/14, who is the 1st respondent in O.P.No.1641/14 of the Family court, Ernakulam, is directed to produce the child before the Family court, Ernakulam, on the next posting date of the above case. If there is any failure on the part of the petitioner in O.P.No.447/14-the mother of the detenue, in producing the child as directed above, this order will stand vacated and consequently O.P.No.447/14 will stand dismissed. It is also made clear that if the mother of the detenue fails to produce the child, the Family court, with the assistance of Police, can secure the presence of the girl child, namely Deva Parvathy. The petitioner in the above original petition is free to file counter affidavit if any in O.P.No.1641/14 and also in I.A.No.3242/14. On producing the child as directed above, the Family court, Ernakulam, is free to implement Ext.P2 order and after considering the counter affidavit, if any, if the Family court is of the opinion that, it is necessary to re-consider the order dated 2.9.2014, the court below can pass appropriate orders thereon.
O.P.No.447/14 and WP(Crl) No.372/14 are disposed of accordingly.
Sd/-
V.K.MOHANAN, Judge.
ami/ //True copy// P.A.to Judge Sd/-
K.HARILAL, Judge.