John M.T And Ors vs Mary T.A And Ors

M.R. Anitha, J

O.P(FC).280/2020 has been filed by the petitioner/husband seeking early disposal of O.P.212/2020 pending before the Family Court, Vadakara, Kozhikode. O.P.212/2020 has been filed for custody of two minor children of the petitioner from the respondent.

It is the case of the petitioner that his wife along with her mother, father, sister and the elder daughter had been to Israel on 19.12.2019. His wife, father and sister jumped out from the tourist team and stayed there on some temporary visa/licence. The respondent/mother-in-law stayed with the petitioner at his residence till 10.3.2020. When the schools were shut down due to COVID-19 pandemic, the respondent along with children went to her home town near Taliparamba. Thereafter petitioner contacted the children and stayed with them till 8.5.2020 and on return, respondent promised to return with the children immediately after the lock down. The respondent is 70 years old and is not in a position to protect the welfare of the children. The respondent is not permitting the children to attend the on-line classes provided by the School and she is insisting the petitioner to bring the T.C. and conduct certificate from the school for sending the children to a nearby school of her relative. Hence the petitioner filed the above OP seeking custody of the children. Studies of the children were disrupted due to illegal confinement of the children of the respondent and it would affect their future. Hence he approached this court seeking a direction to the Family Court, Vadakara to dispose the above case within a short span of time.

Notice was issued to the respondent. Respondent appeared through counsel.

Tr.P.(C).235/2020 has been filed by the respondent in OP(FC).280/2020 seeking for transfer of OP.212/2020 on the file of the Family Court, Vadakara to Family Court, Kannur. According to the petitioner, who is the mother-in-law of the respondent, the daughter of the petitioner is now working abroad and the two minor children of the daughter aged ten years and seven years are residing with her at Payyannur in Kannur district. Relationship between the respondent and daughter of the petitioner is not cordial. It is not convenient for the petitioner to contest the case at Family Court, Vadakara which is situated more than 80 Kms away from her residence. The Family Court, Kannur is only 30 Kms away from her residence. She is aged 70 years and is suffering from old age diseases. Hence this petition.

Notice was issued to the respondent in this case. Respondent appeared through the counsel.

W.P.(Crl).286/2020 has been filed by the petitioner in O.P(FC).280/2020 to issue a writ of habeas corpus or any other appropriate writ directing respondents 1 and 3 to produce the corpus of the children, Olvia Maria John and Helna Rose John, and to release them from the illegal confinement/detention of the 3rd respondent/respondent in OP(FC).280/2020.

Notice was issued to the respondents. Respondents 1 and 2 appeared through the learned Senior Public Prosecutor and the 3rd respondent appeared through the counsel.

Heard both sides in all the cases.

Since parties in all the cases are almost same and the subject matter is also with regard to the custody of the children, all the cases were heard together and are being disposed of by a common judgment.

Petitioner in OP(FC).280/2020 would be referred hereafter, as the petitioner and the respondent as respondent. Admittedly the petitioner is the father of the minor children and the respondent is the maternal grand mother of the children. It is not in dispute that the mother of the minor children is abroad. It is submitted by the learned counsel for the respondent that mother of the children are now employed at Israel. Respondent in this case is residing in Kannur district, which according to her, is about 80 Kms away from the Family Court, Vadakara. That fact is not seen disputed. Admittedly children are also with her. So it is only just and proper to consider her plea for transfer of the case from the Family Court, Vadakara. Petitioner is residing at Perambra, Kozhikode. In the facts and circumstances, we find it expedient to transfer OP.212/2020 from Family Court, Vadakara to Family Court, Thalassery.

The grievance of the petitioner is that the respondent is an old lady and even according to her, she is suffering from old age ailments. Hence it will not be in the best interest of the children to continue the custody with the respondent. It is also his contention that the respondent has no permanent abode and is staying in the house of a relative with the petitioner's children. He has also got a complaint that the respondent is not in a position to bring up the children properly and hence an early disposal of the petition is absolutely necessary.

Admittedly the mother of the children is abroad and they are being presently looked after by the aged grand mother. But the custody of the children by the respondent/grand mother cannot be said as illegal. Hence, no interference at the instance of this court is warranted by exercising extra ordinary jurisdiction of this court under Article 226 of the Constitution of India.

In the result, Tr.P.(C).235/2020 is allowed, transferring OP.212/2020 from the Family Court, Vadakara to Family Court, Thalassery. Family Court, Vadakara shall transmit the records of OP.212/2020 forthwith to the Family Court, Thalassery. On receipt of the said records, the Family Court, Thalassery shall dispose of the OP as early as possible and at any rate, not later than six months from the date of receipt of the records from the Family Court, Vadakara. OP(FC).280/2020 is disposed of with the above direction. It is made clear that any application for interim custody of the children shall also be considered by the Family Court, if such an application is filed.

W.P.(Crl).286/2020 is found to be devoid of any merit and hence dismissed.