SAIDU Vs. SHAKKEELA

JUDGEMENT

(1.) The parties to this O.P are divorced spouses. The bone of contention is the custody of a minor child, who is now said to be aged about 9 years. The child is now in the custody of the petitioner/father. Guardian O.P.No.1724 of 2008 was settled between the parties. As per the compromise, the child was to be taken to the mother on specified dates. The learned counsel for the petitioner accepted the compromise and passed Ext.P2 order in terms of the compromise. That order was passed on 02.09.2009. The agreement and the order were complied with allegedly for some period of time. Subsequently, admittedly, the order has not been complied with. The mother, ie. the respondent herein, in distress had approached the Family Court to take action against the petitioner for non compliance with the interim order. That petition is pending. While that petition is pending, the petitioner has come running to this Court with this petition under Article 227 of the Constitution of India.

(2.) What is the grievance of the petitioner? According to the petitioner, the child is unwilling and that is why the petitioner could not comply with the order. The response of the child may be ascertained, submits the learned counsel for the petitioner.

(3.) We find no reason why the extraordinary constitutional jurisdiction under Article 227 can or ought to be invoked. In response to Ext.P3 petition, the petitioner shall be at liberty to raise all his contentions and place all relevant materials before the Family Court. We have no reason to assume that the Family Court shall dispose of Ext.P3 application for action against the petitioner without and before granting the parties opportunity to place all materials before the Family Court and without passing a considered order taking into consideration the contentions of both spouses. We are not persuaded to issue any specific directions in the matter. We assume that Ext.P3 petition shall be disposed of by the court below only in accordance with law.