Mohanan,J:
This Original Petition (F.C.) is preferred under Article 227 of the Constitution of India against Ext.P10 common order dated 2.4.2014 in I.A.Nos.1060 & 1116 of 2014 in O.P.No.897 of 2013, with the following prayers:-
a) Set aside Ext.P10 order dtd.2.4.2014 passed by the Family Court, Ernakulam in I.A.No.1060/2014 in O.P.No.897 of 2013;
b) Issue appropriate orders and directions in Ext.P8 I.A.1060 of 2014 in O.P.No.897 of 2013 on the file of the Family Court, Ernakulam granting temporary custody of the minor children Aswath aged 11 years and Akshay aged 8 years to the petitioner herein during the current school summer vacation (2014) of the children;
c) Issue appropriate orders and directions to the respondent to let the minor children Aswath aged 11 years and Akshay aged 8 years appear for entrance tests and other admission procedures as and when needed and communicated by the petitioner for the purpose of earning school admission for them in pursuance of the liberty granted by this Hon'ble Court in Ext.P6 judgment;
d) pass such other orders as though fit and proper by this Hon'ble Court in the facts and circumstances of the case and award costs of this proceeding to the petitioner.
2. Originally, the petitioner herein, who is the mother of the children Aswath aged 11 years and Akshay aged 8 years born in the wedlock of the petitioner and the respondent approached the court below by filing O.P.No.897 of 2013 under the Guardians and Wards Act,1890 seeking permanent custody of the above children. In the above Guardian O.P., the petitioner herein preferred I.A.No.1060 of 2014 seeking interim custody of the above minors during the summer vacation, which prayer was resisted by the respondent/father. Subsequently, the very same petitioner preferred I.A.No.1116 of 2014 seeking permission of the court to limit the custody of the children for Sundays alone since the arrangement made by this Court for the interim custody of the children in term of the order dated 12.2.2014 in OP (FC) No.3151 of 2013 is not workable and it is alleged that for the welfare of the children, it is necessary to limit the custody of the children for Sunday alone. The learned Judge of the Family Court, after having considered all the issues and the facts and circumstances involved particularly after considering the order passed by this Court, issued Ext.P10 order dismissing both the petitions filed by the petitioner herein/the mother. Thus, the present Original Petition is filed against Ext.P10 order.
3. This Court by Ext.P4 order dated 26.9.2013, after having considered the entire facts and circumstances of the case and the welfare of the child, directed that the mother be given weekend custody of the children and also permitted her to collect the children from the school on every Friday evening and drop them back at the school in the morning of the following Monday.
4. The children are now studying in the Nypunya Public School, Angamaly and the children are attending the school from the house of their father situated near the school. It is also relevant to note that in the above writ petition, this Court passed an order dated 9th day of April,2014 wherein there is a reference regarding the direction issued by this Court in O.P.(FC) No.3151/2013 to dispose of the case within three months from the date of receipt of a copy of the judgment. In the order dated 9.4.2014, this Court clarified that the direction should be strictly complied with. Again, this Court by order dated 11.4.2014 modified the order dated 9.4.2014 to the effect that the father shall hand over the children to the mother for a period of thirty days from 21.4.2014 at the premises of the Family Court, Ernakulam and also declared that all the other directions in the order dated 9.4.2014 shall stand. Now, the case of the petitioner is that she had obtained or secured admission for the children in the Prabhat Public School at Udayamperoor and therefore, it is her prayer that the custody of the children may be given to her to get admitted the children in the school and ensure their education in the said school, which is situating near to her house.
5. We have considered the rival contentions agitated before us.
The undisputed fact is that the children of the fighting parents are now studying in a Public School at Angamaly. The school in which the admission is sought by the petitioner/appellant is also a public school at Udayamperoor. The question regarding the permanent custody of the children is yet to be decided in the Family Court, Ernakulam and the matter is pending there for consideration and another Bench of this Court has already ordered the court below for an earlier disposal of the matter.
6. When the above petition came up for consideration, on 21.5.2014, we directed the Registry to get a report from the learned Judge of the Family Court, Ernakulam as to whether O.P.No.897 of 2013 is ripe for trial and whether the respondent therein has filed objection or counter affidavit, if any and when the Original Petition can be disposed of on completing the pleadings.
7. The Family Court, in terms of the above direction issued by this Court, reported that in O.P.No.897 of 2013 preferred by the petitioner herein, who is the mother, the respondent had entered appearance and the matter was referred for counselling on 7.6.2013. But it was not materialised. But, the matter was not referred for mediation so far. It is also reported that the respondent/father in the above O.P. has filed objection with counter claim on 11.4.2014 and no replication for counter claim was seen filed by the petitioner/mother. It is also reported that the father, who is the husband of the petitioner, preferred O.P.No.987 of 2013 for dissolution of marriage, which is pending for consideration and in that case, the respondent has not filed objection so far. The learned Judge of the Family Court has further reported that on completing the proceedings in the above two cases, both matters can be disposed of together for which the learned Judge seeks time up to 30th September,2014.
8. Since the children are pursuing their studies in the Naipunya Public School, Karukutty, Angamaly, which is also a public school, we are of the view that it is not proper to disturb their studies in that school at this stage, especially when the Guardian OP as well as divorce petition are pending consideration,which can be disposed of by the month of September,2014, Therefore, instead of retaining the present petition on the file of this Court, the same can be disposed of directing the court below to dispose of those matters (O.P.No.897 of 2013 as well as 987 of 2013) within the time as requested by the court below and in the mean while, the interim arrangement made by this court as per Ext.P4 order can be ordered to be continued.
In the result, this Original Petition is disposed of directing the Family Court, Ernakulam to take up O.P.Nos.897/13 and 987/13 and to dispose of the same by the end of September,2014 and the parties to the dispute are directed to co-operate with the trial of the case for which they are directed to complete their pleadings, particularly the petitioner herein and to adduce evidence, which would be scheduled by the court below, for trial of the cases. It is made clear that in the mean while, regarding the custody of the children, the parties are directed to comply with the directions issued by this Court as per Ext.P4 order. The learned Judge of the Family Court is directed to see that the direction issued by this Court in Ext.P4 order is strictly complied with by the parties.
This Original Petition (FC) is disposed of as above.
V.K.MOHANAN, Judge A.HARIPRASAD, Judge.
MBS/