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Transfer Petition Civil
Tr. P. (C) No. 130 of 2012 - Suchithra Madhusoodhanan Vs. Naveen R. Nair, 2013 (1) KLT 70 : 2013 (1) KHC 97
(2012) 282 KLR 619 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934 Tr.P(C).No. 130 of 2012 () -------------------------- OPGW.193/2012 of FAMILY COURT,TRIVANDRUM ................................................. PETITIONER(S) : --------------------- SUCHITHRA MADHUSOODHANAN AGED 27 YEARS, D/O.RADHAMANI, THATTARATH HOUSE, MULAKKARA P.O., PATHANAMTHITTA. BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S) : ------------------------ NAVEEN R.NAIR AGED 32 YEARS, S/O.K.R.T.C.NAIR, A2, GEETHANJALI, PILLAVEEDU NAGAR, KESAVADASAPURAM - 695 001. R BY ADV. SRI.P.A.AHAMMED R BY ADV. SRI.THOUFEEK AHAMED THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX PETITIONER(S) ANNEXURES :
RESPONDENTS ANNEXURES:
/TRUE COPY/ P.A.TO JUDGE AMV V.CHITAMBARESH,J. = = = = = = = = = = = Tr.P.(C) No. 130 of 2012 = = = = = = = = = = = == = = = = Dated this the 12th day of December, 2012 Head Note:- Guardian and Wards Act, 1890 - Section 9 - Only the court having jurisdiction in the place where the minor ordinarily resides can entertain a petition for guardianship. The mere fact that the mother or the father of the child was stationed temporarily at various places in connection with their employment is immaterial. O R D E R O.P(G &W) No.193/2012 on the file of the Family Court, Thiruvananthapuram has been filed by the wife for permanent custody of her minor daughter - Amudha Naveen -now aged 4 = years . The wife is employed as a non technical senior executive in U.S.T Global Technopark, Thiruvananthapuram and her husband is working as the Bureau Chief in CNN IBN, Thiruvananthapuram. It is stated that the wife is under orders of transfer to Ernakulam and that her job enables her to lend her services from home compelling her to attend office only in connection with important meetings. It is further stated that the petition for permanent custody was filed at Thiruvananthapuram when she was occupying a rented house at Sasthamangalam at Thiruvananthapuram which has subsequently been vacated in September 2012. The wife seeks transfer of the case from the Family Court, Thiruvananthapuram to the Family Court, Pathanamthitta even though the prayer in the petition for transfer mentions Alappuzha which is a neighbouring district of Pathanamthitta. 2. The husband contends that the wife had preferred the petition for permanent custody of the child at Thiruvananthapuram on her own volition and that she should not be permitted to get a transfer of the case to another place dependant on her employment. It is further stated that her base working station is at Thiruvananthapuram only even though she may be occupying rented premises at Ernakulam or elsewhere. The husband points out that the child, Amudha Naveen has been left with the mother of the wife at Malakkara , Pathanamthitta and that no case for transfer is made out. The husband contends that he got a transfer from New Delhi to Thiruvanthapuram only for the purpose of spending more time with the child Amudha Naveen and his wife (now estranged). 3. It may at once be noticed that the child may have to appear in the Family Court often in connection with interim custody and also in the enquiry about her wishes by the Presiding Officer. The following documents would reveal that the child is presently studying in the Vani Public School, Chengannur at Pathanamthitta i) Fee receipt of Vani Public School (Annexure 7). ii) Hall ticket issued for Asia Scholarship Examination which mentions the school also (Annexure 11) iii) Merit Card issued by the school (Annexure 12) iv) Attendance register maintained by the school (Annexure 14) v) Fee receipt issued by the school (Annexure 15) vi) Letter issued by the school complaining of unauthorised absence of child. (Annexure R1(h)) These documents prima facie show that the child is studying in the Vani Public School, Chengannur falling within the jurisdiction of the Family Court, Pathanamthitta 4. It is conceded that the mother of the wife is residing at Malakkara in Pathanamthitta. The permanent residence of the wife is also at Malakkara,Pathanamthitta as is evident by the Residential Certificate issued by the Secretary of Grama Panchayath (Annexure 6). The minor ordinarily resides within the jurisdiction of the Family Court, Pathanamthitta to which Court the transfer is now sought. Only the court having jurisdiction in the place where the minor ordinarily resides can entertain a petition for guardianship under Section 9 of the Guardian and Wards Act, 1890. The mere fact that the mother or the father of the child was stationed temporarily at various places in connection with their employment is immaterial. A reference in this connection to the judgment in T.J.Chandy vs. Mary Baneena and another (1988 (1)KLJ 529) is apposite. It is held therein as follows. "It is true that the place of residence at the time of filing of the application under the Act is not decisive to ascertain the place of ordinary residence, as it would be easy to move the minor children from one place to another and from one jurisdiction to another. The expression "ordinarily resides" connote a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of parent's employment." 5. The wife has explained that she could not succeed in securing admission for the child at Sree Atamanada Memorial School, Malakkara owing to the fact that she was not 4 = years then. The documents aforementioned prima facie show that Amudha Naveen is now studying in the Vani Public School within the jurisdiction of the Family Court, Pathanamthitta . It will be a virtual impossibility for the wife and child to travel all the way from Pathanamthitta to Thiruvanthapuram for the conduct of the case. It may only be a slight inconvenience for the husband to travel from Thiruvanathapuram to Pathanamthitta for this purpose. 6. I therefore order transfer of O.P (G & W)No.193/2012 from the Family Court, Thiruvananthapuram to the Family Court, Pathanamthitta at Thiruvalla. Either parties are at liberty to move the Family Court, Pathanamthitta for visiting rights during the weekends, Onam holidays, Christmas holidays and the Summer holidays. 7. The husband points out that there is a paucity of time now to move the transferee court for interim custody of the child during the Christmas vacation for the year 2012. I find that the child -Amudha Naveen - has through out been with the wife during the pendency of the proceedings. I therefore permit the respondent father to have interim custody of the child for eight days during the Christmas vacation in the year 2012. The wife shall hand over the child -Amudha Naveen- to the husband at 10.a.m on 20-12-2012. The husband shall return the child at 10.a.m on 28-12-2012. The venue for handing over the child on these two occasions will be the Family court, Pathanamthitta at Thiruvalla. The husband laments that the order passed by the Family Court, Thiruvanthapuram as regards interim custody during alternate Saturdays is not strictly being complied with by the wife. That is a matter to be brought to the notice of the transferee court which will deal with all the aspects. The Transfer Petition (Civil) is disposed of. No costs. V.CHITAMBARESH. JUDGE smm |
T.P. (C) No. 383 of 2011 - Renu Alex Vs. Alexander Muthalali, 2012 (3) KLT SN 40 (C.No. 40) : 2012 (2) KHC 717
(2012) 250 KLR 891 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 22ND DAY OF MARCH 2012/2ND CHAITHRA 1934 Tr.P(C).No. 383 of 2011 ( ) --------------------------- OP.616/2010 of FAMILY COURT, KOTTARAKKARA TO FAMILY COURT, KOLLAM .............. PETITIONER: ------------------- RENU ALEX, D/O.SUSAMMA PHILIP, AYATHIL HOUSE, VATHAKODE, KURA.P.O., PATHANAPURAM, PIN-691 557. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS. RESPONDENT(S): -------------------------- ALEXANDER MUTHALALI, S/O.PODI KUNJU MUTHALALI, MANGALATHU PANDAKASALA, PEACE NAGAR (F-9), KIZHEKKE THERUVU, KOTTARAKKARA. PIN-691 506. BY ADV. SMT.S.K.DEVI. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-03-2012, ALONG WITH Tr.P(C). No. 384 OF 2011 AND Tr.P(C). No. 395 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ------------------------------- Tr.P.(C).NOS.383, 384 & 395 OF 2011 ----------------------------------- Dated this the 22nd day of March, 2012 Head Note:- Civil Procedure Code, 1908 - Section 24 - To seek a transfer on the ground that there is bias or prejudice on the part of the court and thus there will be denial of justice, concrete proof to substantiate such apprehension cannot be insisted upon. Is there reasonable ground to hold so alone will be the outlook of the court to see whether the request for transfer cannot be brushed aside. O R D E R The above three transfer petitions are filed by the same petitioner seeking transfer of three cases pending on the file of the Family Court, Kottarakkara to the Family Court, Kollam. Petitioner is the wife and the respondent, the husband. Matrimonial disputes of the spouses have given rise to three proceedings before the Family Court, one of them by the wife and the two others by the husband. The wife has filed O.P.No.616 of 2010 seeking a decree for return of gold ornaments and compensation. Husband has filed two other petitions as O.P.Nos.358 of 2011 and O.P.No.830 of 2011, the former to restrain the wife from collecting the amount on the policy taken in her name in the Life Insurance Corporation and the latter restraining her from entering into the matrimonial home. All the above three petitions are now pending before the Family Court, Kottarakkara. Petitioner/wife seeks transfer of the cases to the Family Court, Kollam as indicated earlier. 2. Notice given, the respondent/husband has entered appearance. I heard the counsel on both sides. Transfer is sought for by the wife on the ground that in view of what transpired earlier with respect to the disposal of a maintenance claim prosecuted by her for herself and also for the children against the husband numbered as M.C.No.143 of 2010 she apprehends that she will not get a fair disposal in the three cases pending before the same court. From the submissions made by the learned counsel for the petitioner such apprehension was based on account of the dismissal of the maintenance claim numbered as above by the Judge, Family Court. During the pendency of the prosecution of the maintenance claim pursuant to conciliatory steps taken, the wife had joined the husband with the children. However, such reunion was short-linked and she filed a petition before the Magistrate Court invoking the provisions covered by the Protection of Women from Domestic Violence Act. Steps taken by her as above, according to the counsel, infuriated the learned Judge, Family Court and that had resulted in dismissal of her maintenance claim. Without even a counter being filed by the respondent in such proceedings that order of dismissal rendered by the Judge, Family Court, has been reversed in revision moved by the wife. Further dilation over the ground canvassed by the petitioner/wife on the imputations made as above against the Presiding Officer of the Family Court as regards the circumstances which surrounded the dismissal of the maintenance claim mooted by her as M.C.No.143 of 2010, I find it is not necessary for disposal of these transfer petitions. The learned counsel for the respondent has handed over a copy of the order dated 11.01.2012 by this Court in the revision numbered as R.P.(FC).No.257 of 2011 moved by the wife challenging the dismissal of M.C.No.143 of 2010 by the Family Court. Paragraph 4 of that decision reads thus: "On going through the order of the court below it is seen that different sessions of conciliation and mediation were conducted and when conciliation became almost successful, it seems that a notice was issued by the 1st petitioner to the husband calling upon him to comply with the order passed by the learned Magistrate under the Domestic Violence Act. This notice produced before the lower courts seems to have infuriated the learned Family Court Judge and without going to the details of the case, simply dismissed the petition. On going through the order, this Court find it extremely difficult to justify the order now passed by the trial court. It contains no acceptable reasons and the reasons given are faulty. The reasons given to reject the claim made by the petitioner and to dismiss the petition are not at all legally sustainable. It is quite unfortunate that the Family Court should have passed such an order affecting the valuable rights of parties. Hence, the impugned order is set aside and Family Court is directed to take the petition on file and dispose it of in accordance with law and in the light of what has been stated above." The above observations made by this Court in allowing the revision would indicate that the apprehension entertained by the wife that she would not get a fair trial from the court where the petitions are now pending cannot be brushed aside are totally unworthy of any merit. To seek a transfer on the ground that there is bias or prejudice on the part of the court and thus there will be denial of justice, concrete proof to substantiate such apprehension cannot be insisted upon. Is there reasonable ground to hold so alone will be the outlook of the court to see whether the request for transfer cannot be brushed aside. Looking at that angle, I find that in the given facts of the case, the petitioner/wife is justified in seeking a transfer of the two petitions pending before the Family Court, Kottarakkara to the Family Court, Kollam. I make it clear that the observations made by me cannot be construed in any way as casting any aspersion on the Presiding officer of the Family Court, nor even that the petitioner/wife has shown by sufficient materials or otherwise that her apprehension so expressed is true and genuine. But I only say that the apprehension canvassed by her in the light of the circumstances referred to above cannot be brushed aside. 3. O.P.No.616 of 2010 and O.P.Nos.358 and 830 of 2011, all of them pending before the Family Court, Kottarakkara are directed to be transferred to the Family Court, Kollam. The Judge, Family Court, Kottarakkara shall transmit the records of the above three cases to the Family Court, Kollam without delay. The transferee court, on receipt of the records, shall give notice to the parties for appearance. Subject to the above directions, the transfer petitions are disposed of. S.S.SATHEESACHANDRAN JUDGE prp |
T.P. (C) No. 1301 of 2011 - Union of india Vs. Chaitanya Bharathi Inst. of Tech. & Ors.
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
H.L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ. JULY 02, 2012 TRANSFER PETITION (C.) NO.1301 OF 2011 O R D E R We are informed that the main Writ Petition itself is disposed of by the High Court. This Transfer Petition was filed by the petitioner to direct that the Writ Petition pending before the High Court be transferred to this Court. Since the main matter itself is disposed of, question of transfer of the disposed of Writ Petition does not arise. The Transfer Petition is disposed of as having become infructuous. Ordered accordingly. |
T.P. (C) No. of 2012 - Preeti Yohannan Vs. Abraham K. Mathen, 2012 (3) KLT 111 : 2012 (3) KHC 76
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. Chitambaresh, J. Tr.P.(C) No. of 2012 Dated this the 26th day of June, 2012 Head Note:- Code of Civil Procedure, 1908 - Section 24 - High Court Rules, 1971 (Kerala) - Civil Rules of Practice (Kerala) - Rule 57 - Application for Transfer - Separate petitions need to be filed to transfer independent proceedings pending in the court below. Held:- The power to transfer under Section 24 of the Code of Civil Procedure, 1908 is exercised not only by the District Court but also the High Court. It will be anomalous to permit a consolidated petition to be moved in the High Court when separate petitions are insisted in the District Court. Instances are many where a consolidated petition for transfer is filed even though the parties are different in the proceedings merely because a few of them are common. Separate petitions for transfer of independent suit, appeal or proceeding is essential to adjudge the need set forth in the same. Different considerations prevail for transfer of independent proceedings even if they have a common nexus and the finding in one has a bearing in another. For Petitioner:-
O R D E R 1. The Registry has noted a defect and has objected to the numbering of the Transfer Petition (Civil) filed under Section 24 of the Code of Civil Procedure, 1908. The objection is that separate petitions need to be filed to transfer independent proceedings pending in the court below. The petitioner seeks transfer of the following proceedings from the Family Court, Nedumangad to the Family Court, Thiruvananthapuram. (i) O.P. No. 630/2012 filed for dissolution of marriage. (ii) O.P. No. 488/2012 filed for declaration of guardianship. (iii) O.P. No. 527/2012 filed for recovery of money and articles. (iv) O.P. No. 636/2012 filed for custody of minor child. 2. The High Court Rules, 1971 (Kerala) of course do not specify as to whether separate petitions should be filed for transfer of independent proceedings. But we get the necessary cue from the Civil Rules of Practice (Kerala) though they are intended to regulate the procedure in the Subordinate Civil Court in the State. The relevant rule therein is as follows: "57. Application for transfer: (1) …………………. (2) …………………. (3) A separate application shall be presented in respect of each suit, appeal or other proceedings of which transfer is sought. " The power to transfer under Section 24 of the Code of Civil Procedure, 1908 is exercised not only by the District Court but also the High Court. It will be anomalous to permit a consolidated petition to be moved in the High Court when separate petitions are insisted in the District Court. 3. Instances are many where a consolidated petition for transfer is filed even though the parties are different in the proceedings merely because a few of them are common. Separate petitions for transfer of independent suit, appeal or proceeding is essential to adjudge the need set forth in the same. Different considerations prevail for transfer of independent proceedings even if they have a common nexus and the finding in one has a bearing in another. The contention that all procedure should be deemed to have been permitted unless prohibited in the High Court Rules, 1971 (Kerala) does not at all impress me. 4. The objection raised by the Registry is sustained. The Registry shall return the Transfer Petition (Civil) to the petitioner for representation after appropriate correction. |
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