Harilal, J.
The petitioner herein is the divorced wife of the respondent and in visitation wedlock, a girl child was born on 3.5.2009. The marriage between the petitioner and the respondent was dissolved as per the decree passed in O.P. (HMA) No.48/13 of the Family court, Malappuram. Before passing the above said decree, the parties had entered into an agreement, whereby the entire disputes between the petitioner and the respondent were settled reserving the visitation right of the respondent and his family members. Now the petitioner herein has married another person and is residing along with him and the minor child is also under the love, care and protection of the petitioner.
2. While so, on 16.10.2014, the respondent herein informed the father of the petitioner that he wants to hand over the minor child to him and the court below has passed an order directing him to hand over the child to the petitioner. Immediately, the petitioner herein and her father contacted her counsel at Tirur ; whereupon on verification, the petitioner came to know that an ex parte order had been passed on 25.5.2014 in GW (OP) No.929/13 filed by the respondent herein claiming the custody of the child.
3. According to the petitioner, no notice or summons from any court was served on the petitioner in the above said original petition and address shown in the cause title of the original petition was not correct. The petitioner is not residing in the address shown in the original petition. The respondent has purposefully incorporated the wrong address in the cause title of the original petition with a view to obtain an ex parte order behind the back of the petitioner. Feeling aggrieved, the petitioner has filed Ext.P4 petition along with a petition to condone the delay occurred in filing Ext.P4 to set aside the ex parte order passed by the court below in GW (OP) No.929/13 and the same is marked as Ext.P4 in this original petition. Thus Ext.P4 is pending before the court below.
4. In the meanwhile, the respondent herein has taken hasty steps to execute Ext.P3 order. The grievance of the petitioner is that, if Ext.P3 order is executed pending disposal of Ext.P4 petition, the petitioner will be put to suffer irreparable damages and difficulty. In the above premises, this original petition is filed seeking a direction to the court below to consider Ext.P4 in GW(OP) No.929/13 on the file of the Family court, Tirur, within a specified time and also to stay all further proceedings in Ext.P3 order in GW(OP) No.929/13 of the same court.
5. Though notice had been duly served on the respondent, he has not chosen to enter appearance before this Court to contest this original petition on merits. The learned counsel for the petitioner advanced arguments in support of the grounds raised in this original petition. The sum and substance of the arguments raised before us by the learned counsel is that the ex parte decree was obtained behind her back. No notice or summons from the court below had been served to her and the address shown in the original petition is not correct. Moreover, the newspaper in which the publication was carried out does not have a circulation in the area where the petitioner is residing. That newspaper has very limited circulation, in Tirur town alone. Had she be given notice of the original petition, certainly she would have taken steps to oppose the original petition. But an opportunity of being heard, before passing an order affecting her right, was denied to her.
6. Going by Exts.P3 and P4 and the proceedings culminated to the same, it could be seen that Ext.P3 execution proceedings are being initiated on the basis of a decree passed ex parte. According to the petitioner, the said decree had been obtained behind his back as the notice has not been duly served in accordance with law. As rightly submitted by the learned counsel for the petitioner, if the court below is allowed to proceed with Ext.P3 execution proceedings, the purpose of Ext.P4 proceedings will be defeated and the petitioner would be put to irreparable injury and hardship. In this analysis, we are of the opinion that the petitioner has to be given an opportunity to contest Ext.P4 at first and thereafter Ext.P3 proceedings can be initiated. Hence this original petition is disposed of with the following directions :
1) The Family court, Tirur, is directed to consider and dispose Ext.P4 - I.A.No.1588/14 in GW(OP) No.929/13, within a period of 3 months from today.
2) All further proceedings pursuant to Ext.P3 order in GW(OP) No.929/13 shall be kept in abeyance till the disposal of Ext.P4 proceedings.
This original petition is disposed of accordingly.
Sd/-
V.K.MOHANAN, Judge.
ami/ //True copy// P.A.to Judge Sd/-
K.HARILAL, Judge.