Kerala High Court
Renu Alex vs Alexander Muthalali on 22 March, 2012
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
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 ( )
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OP.616/2010 of FAMILY COURT, KOTTARAKKARA TO FAMILY COURT, KOLLAM
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PETITIONER:
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RENU ALEX, D/O.SUSAMMA PHILIP,
AYATHIL HOUSE, VATHAKODE,
KURA.P.O., PATHANAPURAM, PIN-691 557.
BY ADV. SRI.THYPARAMBIL THOMAS THOMAS.
RESPONDENT(S):
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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.
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Tr.P.(C).NOS.383, 384 & 395 OF 2011
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Dated this the 22nd day of March, 2012
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 Tr.P.(C).NOS.383, 384 & 395/2011 2 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 Tr.P.(C).NOS.383, 384 & 395/2011 3 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 Tr.P.(C).NOS.383, 384 & 395/2011 4 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 Tr.P.(C).NOS.383, 384 & 395/2011 5 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. Tr.P.(C).NOS.383, 384 & 395/2011 6 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 Tr.P.(C).NOS.383, 384 & 395/2011 7