Amit Rawal, J.

1. The present original petition is directed against the common order whereby the family court disposed of I.A.Nos.01/2023, 02/2023 and 03/2023 in O.P.No.1160/2023 and I.A.No.1/2023 in O.P.No.1138/2023 at the instance of paternal grandmother and father of the child, namely Devnav Vaisakh Vijayan.

2. Petitioner No.2 married the daughter of the counter petitioners, namely Suraj K. and Reeja Suraj and out of the wedlock the child above mentioned was born. After the marriage, husband and wife started living in Sharjah. Since it was difficult for the couple to discharge their official duties or to dedicate themselves to their working hours, the paternal grandmother, i.e., petitioner No.1 was requested to join their company at Sharjah. Realising that the upbringing and care of the child would be better in India, both the couple submitted a request dated 19/07/2023 to the Indian Consulate authorising petitioner No.1 to take the child to Kerala.

3. Unfortunately 7 days thereafter, Rani Gowry, daughter of counter petitioners, daughter-in-law of petitioner No.1, wife of the petitioner No.2 died of suicide on 26.07.2023. Her dead body was brought to India for the purpose of performance of the last rites. The dispute regarding the custody of the child for performance of the last rites at the house of the counter petitioners i.e., the maternal grandparents arose. Ultimately, the custody of the child was given to the maternal grandparents for performance of the rites.

4. An FIR under Section 304B along with other provisions of IPC had also been registered against both the petitioners father and paternal grandmother. Petition for anticipatory bail is pending adjudication in this Court bearing No. B.A.No.7159/2023 with an interim order in their favour.

5. Owing to the unfortunate death of daughter/daughter-in-law it is a common practice that both sides being disturbed and agitated, sometimes indulges into throwing out their venom which had been brewing for sometime. As an outcome of that, O.P.No.1138/2023 was preferred by the 1st petitioner seeking custody of the child under the Guardian and Wards Act, 1890. On the other hand, maternal grandparents also filed O.P.No.1160/2023. It is in those pending O.P.s the I.As. referred to above were submitted which had been disposed as not pressed. In I.A.Nos.1 and 2 in O.P.No.1160/2023 preferred by the maternal grandparents, the prayer was with regard to production of the child and to produce the passport of the child, whereas I.A.No.3/2023 was for the interim custody of the child to the maternal grandparents for a period of 20 days. Equally so, 1st petitioner submitted I.A. No.1/2023 in O.P.No.1138/23 for restraining the counter petitioners/ maternal grandparents from forcibly taking the child from their custody.

6. On the basis of the arguments and the facts projected by respective parties, the trial court issued the following directions:-

“1) The present custody of the ward by the petitioner in I.A.No.01/2023 in OP(G&W)No.1138/2023 is only temporary one,since his father is now not available in Kerala.

2) The petitioner is in I.A.No.91/2023 in OP is directed to handed over the ward to 1st counter petitioner in this IA on the day before to the corps of the deceased arrived in Kerala, and permitted to carry the ward to counter petitioner's house to participate in the funeral and that custody is extended up to the next day of Sanchayanam only, their returned the ward to petitioner

3) Further custody of ward granted to 1st counter petitoner in I.A.on day of rituals held on 16th day of funeral for 2 days and counter petitioner shall returned the ward on next days.

4) After the completion of above rituals petitioner is directed to hand over the child to 1 st counter petitioner on every 10.00 a.m. at Saturday and Sunday 5 p.m. till he 3rd respondent left India. 3rd respondent is deprived from carry the ward to other countries without order of Court.

5) The 3rd respondent shall surrender his passport and 1st petitioner shall surrender the passport of the ward before the court on or before 11.08.2023 5 p.m.

6) No costs. Furnish free copies to the parties.”

7. Apparently there appears to be some mistake in the directions for, there is no 3rd respondent as evident from the memo of parties or docket of the impugned order, but if looked at minutely, Devnav Vaisakh, minor child has been treated to be the 3rd respondent. But the meaning of the directions would mean that the order is pertaining to 2nd petitioner, i.e., the father of the ward and son-in-law of the counter petitioners and son of the 1 st petitioner.

8. Learned counsel appearing on behalf of the petitioners submitted that they are aggrieved of two directions, i.e. direction Nos.4 and 5, particularly 5th direction, for, petitioner No.2 has an employment in Sharjah and in the absence of such clarification in the order, would not be able to assume his job over there subject to the orders of the criminal court.

9. Petitioner No.2 has already taken steps to admit the ward in a school at Sharjah which is an international school for children belonging to foreign countries and it would be for the betterment and welfare of the child to have better education than in India, particularly when there is a litigation pending, so that he would be distant from criminal proceedings.

10. Petitioner No.2 is willing to hand over custody to the maternal grandparents, subject to any terms which this Court may deem it appropriate.

11. On the other hand, the learned counsel appearing on behalf of the counter petitioners-maternal grandparents countered the aforementioned arguments and submitted that there had not been any compliance of the interim directions dated 10.08.2023 necessitating them to prefer another I.A. and the trial court vide order dated 26.08.2022 directed the petitioners to produce the child. It is contended before this court that looking at the conduct of the petitioners, the order should not be interdicted or interfered with, rather, urged this court for issuance of strict directions to the petitioners for compliance of the order. There is a likelihood that petitioner No.2 may not return back to India and keep the custody of the ward permanently in Sharjah or he may locate the ward to some other country.

12. We have heard the learned counsel for the parties and appraised the paper book.

13. On perusal of the directions, there are lot of ambiguities as there is no 3rd respondent. Even if the docket of the interim order is looked at, third respondent is to be inferred as Devnav Vaisakh Vijayan who cannot be directed to surrender his passport being a minor. In fact 3rd respondent would be the 2nd petitioner i.e. the husband. The first direction would mean that the husband is not available in Kerala though, after he had been moved to India, has not been able to leave India owing to the pendency of the criminal cases and also pendency of the anticipatory application. As and when any criminal case is launched against an accused, proper permission is required to be obtained from the competent court. In view of such commotion between the two families, there had not been any compliance of direction No.4 at the instance of petitioners necessitating the counter petitioners to approach the Family Court again resulting into the order dated 26.08.2023, the same reads as under:-

“Heard in the light of IA No.05/2023 in OP(G&W) No.1160/2023 and the non compliance of order of production of child before court on 3 pm on 25.08.2023 and non production of passport of ward's father before the court. Both IA No.05/2023 and IA No.06/2023 considered again after hearing both side in both connected cases.

Here counsel for counter petitioner in this IA submitted that child is suffered with chest infection and the Pulakuli Adiyanthiram of ward's mother is to be held on 27.08.2023 and according to petitioner side it is on this day.

The ward is only aged around 4 years. Now she in the custody of father. He did not complied the direction in IA No.06/2023 in OP No.1160/2023 passed on 25.08.2023.

On considering the affidavit in IA No.06/2023 and IA No.05/2023 in OP No.1160/2023 and contentions raised from the counter petitioner's side, the ward has right to pay her tributes to her mother, on the above days funeral rituals is to be held. If this court deprived the same, ie, against the interest of the child.

So to protect the interest of the child, which unknown to a ward of 4 years old, the court should protect it by passing necessary order. I hope that this will not infringe any right of ward's father.

(1) So directed the counter petitioner/father of ward or on whose custody at present at the ward produce child before this court before 3 pm today positively.

(2) It counter petitioner failed to produce the child before court, treated it as wilful disobedience of orders passed in this case. If so, due to non production of ward as directed, SHO, Attingal is directs to take necessary steps to take custody of the ward at the earliest and handed over to petitioner in this case forth with after taking custody and, returned the child to counter petitioner after 2 days of handing over child to petitioner in this case on receipt.

The police shall deputed only Women Police Officers in ordinary dress for compliance. Petitioner shall ensure well being of the child and provide necessary medical assistance.

No cost.”

14. We would not be commenting upon the conduct or misconduct of the parties keeping in view of the predicament of both particularly of counter petitioners whose daughter is no more and as well as the petitioner No.2 who lost his wife. The question is of caring and welfare of the child. The apprehension of the counter petitioners vis-a-vis the 2nd petitioner of clearing the way to Sharjah or some other country for the time being is farfetched for the reason that it is settled law that a person involved in a criminal case cannot leave the country without the permission of the court, particularly when he is enlarged on bail. Anticipatory bail with regard to the protection of life and liberty is still pending consideration vis-a-vis B.A.No.7159/2023.

15. The question which is to be focused is whether in such eventuality the directions contained in the impugned order dated 10.08.2023 for surrendering of the passport of the ward would be sustainable or not. We are of the view that in case petitioner No.2 is able to obtain anticipatory bail and seek the permission of the court to go abroad, in that eventuality we permit the 2nd petitioner to take the ward along with him for giving him a better education in Sharjah and make arrangements for providing care to the ward, but to bring the ward as and when there are occasions like Ramadan or other vacations in the school and whenever the child along with the father is brought to India, the custody of the child would be handed over to the maternal grandparents, half the period of his stay in India by fixing the date and time convenient to the parties. In such situation, the direction for surrendering of the passport of the ward would not be required to be maintained and the said direction is set aside.

16. Till the time the petitioner No.2 is in India, the arrangements as ordered in condition no.4 for handing over the custody of the child to the maternal grandparents would continue to operate with a clarification that as there is no 3rd respondent, the following direction in condition No.4 is deleted.

“3rd respondent is deprived from carry the ward to other countries without order of Court.”

17. The situation with regard to the compliance of other condition is already over and hence we need not interfere with the same.

18. With aforementioned clarification, O.P. stands disposed off.