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2022 Supreme(Online)(KER) 34000
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
ANEESH PHILIPOSE
– Appellant
Versus
SHERIN KURUVILLA – Respondent
Tr.Appeal(C) 15 2022
R.LEELA ARUN, SEBASTIAN M.SREELAKSHMI, Gokul Babu .S, M.ANIL PRASAD(K/1516/1995), S.JAYANT(K/731/2015), SREEKANTH S(K/770/2017), ARUN M.V.(K/943/2017)
The decision emphasizes administrative discretion in transferring family cases for the welfare of minors and practical considerations of justice.
Headnote:
Transfer - Family Law - Kerala High Court Act (1958), Family Courts Act (1984), Guardian and Wards Act (1890) - The court upheld the transfer of family dispute cases to accommodate the welfare of minor children and the jurisdiction issues, as seen in the provisions cited.
Fact of the Case:
The respondent challenged a Single Judge's order to transfer a family petition regarding custody and restitution of conjugal rights from one Family Court to another, citing jurisdiction and convenience based on the parties' residency and status.
Issues: Whether the Single Judge's decision to transfer the case was legally justified or liable to be interfered with by the appellate court.
Ratio Decidendi: The appellate court held that unless orders by the Single Judge are manifestly illegal, they should not be interfered with, affirming the lower court's decision based on logistical considerations for the minor children.
Final Decision: The appeal was dismissed, affirming the transfer of the original petition to the Family Court, Thiruvananthapuram.
JUDGMENT
Anil K. Narendran, J.
The respondent in Tr.P.(C)No.497 of 2022 has filed this Transfer Appeal, invoking the provisions under Section 5 of the Kerala High Court Act , 1958, challenging the order dated 26.08.2022 of the learned Single Judge in that Transfer Petition, whereby O.P.No.3087 of 2021 is ordered to be transferred from the Family Court, Ernakulam to the Family Court, Thiruvananthapuram. By the said order, the parties are given liberty to move the Family Court, Thiruvananthapuram, to seek for consolidation and joint trial of all the cases pending between the parties. O.P.No.3087 of 2021 is one filed by the petitioner, under Section 7 (a) of the Family Courts Act , 1984 read with Sections 10 and 17 of the Guardian and Wards Act , 1890, for restitution of conjugal rights by directing the respondent to resume cohabitation with the petitioner, in his flat at Kadavanthra, and also a decree declaring him as the permanent custodian of the minor children, named, Neil Aneesh Philipose, aged 13 years, Dave Aneesh Philipose, aged 9 years, and Ryan Aneesh Philipose, aged 5 years.
2. In Tr.P.(C)No.497 of 2022, the petitioner entered appearance and filed counter affidavit. After considering the rival contentions, the learned Single Judge allowed the Transfer Petition, by the order dated 26.08.2022, whereby O.P.No.3087 of 2021 pending before the Family Court, Ernakulam is ordered to be transferred to the Family Court, Thiruvananthapuram. In the said order, the learned Single Judge noticed that the respondent- mother along with her minor children are residing at Thiruvananthapuram. The children are studying in a school at Thiruvananthapuram. The respondent is employed in a firm at Thiruvananthapuram and in such circumstances, it would be difficult for them to travel all the way from Thiruvananthapuram to Ernakulam to contest O.P.No.3087 of 2021. Since one of the reliefs sought for is regarding custody of the minor children, they will have to be brought from Thiruvananthapuram to Ernakulam. Moreover, various litigations are pending between the parties before the Family Court, Thiruvananthapuram and also before the Judicial First Class Magistrate Court, Thiruvananthapuram.
3. The learned Senior Counsel for the petitioner would contend that, in view of the directions contained in the judgment dated 09.06.2022 in W.A.No.674 of 2022 and the judgment dated 19.07.2022 in O.P.(FC)No.386 of 2022, the learned Single Judge went wrong in ordering transfer of O.P.No.3087 of 2021 to the Family Court, Thiruvananthapuram. By the above judgments, a Division Bench of this Court directed Family Court, Ernakulam to ensure time bound consideration of O.P.No.3087 of 2021. The learned Senior Counsel would also point out the order dated 01.07.2022 of the Family Court, Ernakulam, in I.A.No.448 of 2022 in O.P.No.3087 of 2021, whereby the application filed by the respondent-mother to return the original petition filed by the petitioner-father, for want of territorial jurisdiction, stands rejected.
4. Per contra, the learned counsel for the respondent would contend that the reasoning of the learned Single Judge in the order dated 26.08.2022 in Tr.P.(C)No.497 of 2022, while ordering transfer of O.P.No.3087 of 2021 from the Family Court, Ernakulam to the Family Court, Thiruvananthapuram, is neither perverse nor patently illegal, warranting interference in exercise of the appellate jurisdiction of this Court under Section 5 of the Kerala High Court Act . While issuing such an order, the learned Single Judge has taken note of the fact that the respondent- mother along with her minor children are staying at Thiruvananthapuram and the children are studying in a school at Thiruvananthapuram.
5. Section 24 of the Civil Procedure Code , 1908, deals with general power of transfer and withdrawal and Section 25 deals with the power of the Supreme Court to transfer suits, etc. As per sub-section (1) of Section 24 , on the application of any of the parties and after
