Kerala High Court
Jayaprakash E.P vs Sheney P on 17 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
TR.P(CRL.) NO. 65 OF 2022
MC 89/2018 OF FAMILY COURT, PATHANAMTHITTA
PETITIONER/RESPONDENT:
JAYAPRAKASH E.P
AGED 54 YEARS
S/O.PADMANABHAN
AMRITHA SAGAR, THENIHPPALAM P.O.,
KADAIKKATTUPARA ROAD, MUDRA CORNER,
MALAPURAM DISTRICT 676 121.
PRESENTLY RESIDING AT ATILYA SAGAR,
SIVAGIRI NAGAR, KULAI HASABETTUE P.O.,
DAKSHINA KANNADA, KARNATAKA, PIN - 575019
BY ADVS.
RESMI A.
R.KRISHNA RAJ(K/975/1989)
E.S.SONI(K/304/2012)
KUMARI SANGEETHA S.NAIR(K/001617/2000)
RESPONDENTS/PETITIONERS:
1 SHENEY P
ANJALI HOUSE, THUVAYOOR SOUTH P.O.,
KADAMPANAD VILLAGE, ADOOR TALUK,
PATHANAMTHITTA DISTRICT , PIN - 691553
2 AMRITHA JAYAPRAKASH
ANJALI HOUSE, THUVAYOOR SOUTH P.O.,
KADAMPANAD VILLAGE, ADOOR TALUK,
PATHANAMTHITTA DISTRICT , PIN - 691553
BY ADVS.
JACOB P. ALEX
JOSEPH P.ALEX(K/1-C/2002)
MANU SANKAR P.(K/000823/2018)
AMAL AMIR ALI(K/000773/2019)
THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
TR.P(CRL.) NO. 65 OF 2022
2
ORDER
Dated this the 17th day of January, 2023 This is a petition filed under Section 407 of the Code of Criminal Procedure, 1973.
2. The petitioner herein is the respondent in M.C.No.89/2018, pending before the Family Court, Pathanamthitta. The petitioner seeks transfer of the above MC to the Family Court, Thiruvananthapuram or Kozhikde in the interest of justice. In the counter affidavit filed by the petitioner, the petitioner board lined the prayer to the effect that transfer can be made to any other court.
3. Heard both sides.
4. The learned counsel for the petitioner argued that the petitioner has been residing in Kozhikode and therefore, he had arranged lawyers to contest the case before the Family Court. He also would submit that MC was listed for evidence on 13.07.2022 and on 13.07.2022, the petitioner was present. TR.P(CRL.) NO. 65 OF 2022 3 Respondent and counsel absent and another counsel represented for the respondent. Accordingly, the case was posted for cross-examination of the petitioner, as last on 14.07.2022. On 14.07.2022, the respondent was absent and the case posted for cross-examination on 16.07.2022. On 16.07.2022, the case posted for evidence or for settlement as last chance on 01.08.2022. It is pointed out by the learned counsel for the petitioner that on 01.08.2022, the court recorded in the order sheet as under:
"both parties were present and then the respondent came in front of the dais without any provocation shouted before me that he has no faith on me and I have not recorded his deposition as such he deposed. Then he made loud noise in the open court and forcefully fisted on the desk. On hearing his shouting people including advocates and clients gathered in the court hall. Then one advocate asked him not to shout before the Court. Then this person shouted against that counsel and threatened him. Then only to keep the decorum of the Court I directed the police official who was on Court duty to remove him from the Court hall. I TR.P(CRL.) NO. 65 OF 2022 4 bonafidely believe that a normal person will not behave in such a manner in the court hall. During this time the wife of this person was making oral complaint that the daughter who is along with the father, called the mother and informed that the father is threatening her."
5. He also would submit that at present the first respondent has been employed in Matsyafed, Thiruvananthapuram, though he would allege that she has been staying along with her parents in Adoor in the affidavit filed in response to this transfer petition. According to the learned counsel for the petitioner, since the Family Court Judge was prejudiced, the petitioner apprehends that there will not be a fair trial and unbiased order. Therefore, transfer as sought for to any other court, which is convenient to the respondents, so as to meet the ends of justice, is to be allowed.
6. However, the learned counsel for the respondents would submit that there are atrocities on the hands of the petitioner and criminal cases also there. According to the TR.P(CRL.) NO. 65 OF 2022 5 learned counsel for the respondents, what has been recorded by the Family Court is the precise form of an event, which is having a wider compass, and therefore, the same shall not be a ground to transfer a case, and if so, proper disposal of the case, within a time frame could not be materialized. Further, the same is inconvenient for the respondents. On that premise, he pressed dismissal of this petition.
7. Since there are allegations against the Judge, this Court called for a report from the Family Court, Pathanamthitta. As per letter dated 24.09.2022, the learned Family Court Judge sent a reply denying the allegations.
8. However, it is pointed out by the learned counsel for the petitioner that the evidence extracted during cross- examination of PW1 was not fully recorded and the evidence given by RW1 also was not fully recorded.
9. The allegations against the Judge may not be a ground to transfer a case. I am not even inclined to hold that TR.P(CRL.) NO. 65 OF 2022 6 the allegations raised by the contesting parties each other or the allegations against the Judge are true to decide the transfer of this case on merits. However, it appears that a maintenance petition filed by the respondents herein seeking maintenance being stalled because of the situation submitted by the parties concerned. Therefore, in order to give a quietus to the litigation in between the parties pending as MC 89/2018, and to render justice between the parties by way of fair trial, I am inclined to allow this petition.
10. Accordingly, MC No.89/2018 pending before the Family Court, Pathanamthitta stands transferred to Family Court, Thiruvalla, a convenient court near to the residence of the respondents, with a direction to the Family Court, Thiruvalla to expedite the trial, untrammeled by the contra submissions made and narrated before this Court, giving liberty to both parties to adduce evidence freely and independently, so that their grievance will be addressed. TR.P(CRL.) NO. 65 OF 2022 7
11. It is submitted by both sides that OP.No.1159/2017 in between the same parties also has been pending before the Family Court, Pathanamthitta and the petitioner herein sought for transfer of the same by filing Tr.P.(C) No. 526/2022. The learned counsel would submit that the transfer order passed in this case will be informed to the jurisdiction of the learned Judge considering the above transfer petition.
12. If the said case also is transferred while considering the transfer petition, the Family Court, Thiruvalla is directed to consider joint trial of both cases together and proceed with trial, as directed above and complete the same within a period of two months from the date of receipt or production of a copy of this order. In case, transfer of OP No.1159/2017 will be disallowed by this Court, the Family Court, Thiruvalla is directed to proceed with trial of MC above and to dispose of the same within the time frame. In so far as the interim order passed by this Court is concerned, since the transfer is allowed, I leave the question of interim maintenance, if any, TR.P(CRL.) NO. 65 OF 2022 8 also to the jurisdiction of the Family Court, Thiruvalla, if the respondents press for the same and accordingly, the interim order passed by this Court on 08.11.2022 stands vacated.
12. The parties are directed to appear before the Family Court, Thiruvalla on 16.02.2023.
The Family Court, Pathanamthitta is directed to forward the case records in MC No.89/2018 to Family Court, Thiruvalla, forthwith.
Registry is directed to forward a copy of this order within 7 days for information and compliance to the Family Courts concerned.
Sd/-
A. BADHARUDEEN JUDGE nkr TR.P(CRL.) NO. 65 OF 2022 9 APPENDIX OF TR.P(CRL.) 65/2022 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE M.C NO.89/2018 PENDING ON THE FILES OF THE FAMILY COURT PATHANAMTHITTA ANNEXURE A2 TRUE COPY OF THE O.P. 1159/2017 PENDING ON THE FILES OF THE FAMILY COURT PATHANAMTHITTA ANNEXURE A3 TRUE COPY OF THE ORDER DATED 22.08.2022 IN TR.P (C). NO.526/2022 ANNEXURE A4 TRUE COPY OF THE DEPOSITION OF THE PETITIONER DATED 16.07.2022 IN M.C. NO. 89/2018 ANNEXURE A5 TRUE COPY OF THE COURT PROCEEDINGS IN M.C. NO.89/2018 PENDING ON THE FILE OF THE FAMILY COURT PATHANAMTHITTA ANNEXURE A6 TRUE COPY OF THE COURT PROCEEDINGS IN O.P.1159/2017 PENDING ON THE FILE OF THE FAMILY COURT PATHANAMTHITTA ANNEXURE A7 TRUE COPY OF THE COPY APPLICATION DATED 22.08.2022 FOR ALL DOCUMENTS RELATED TO M.C. NO. 89/2018 EXHIBIT P-7 TRUE COPY OF THE NEWS PUBLISHED IN MATTERS CONNECTED WITH THE ABOVE SAID MR.SIVA PRASAD EXHIBIT P-8 TRUE COPY OF THE CASE REFERENCE BY CHILD LINE INDIA FOUNDATION (CIF) FROM TRIVANDRUM KERALA, TO THE SHO, KANAKANADY TOWN POLICE STATION, MANGALURU CITY EXHIBIT P-9 TRUE COPY OF THE INTIMATION DATED 20.08.2022, BY THE CHILD LINE 1098 DAKSHINA KANNADA DISTRICT TO THE SHO, KANKANADY TOWN POLICE STATION MANGALURE CITY EXHIBIT P-10 TRUE COPY OF THE ENDORSEMENT OF SHO, KANAKANADY TOWN POLICE STATION, MANGALURE CITY CLOSING THE COMPLAINT IN GSC NO. PO2171220600609 DATED 28.08.2022 TR.P(CRL.) NO. 65 OF 2022 10 EXHIBIT P-11 TRUE COPY OF THE LETTER DATED 12.10.2022 SUBMITTED BY ATULYA JAYAPRAKASH BEFORE THE CWC CHAIRPERSON MANGALORE RESPONDENT ANNEXURES Annexure R1 TRUE COPY OF THE FIRST INFORMATION REPORT DATED 02.11.2017 IN CRIME NO. 313/2017 OF THENIPALAM POLICE STATION Annexure R1(a) TRUE COPY OF THE VOICE RECORD DIGITAL FILE OF THE TELEPHONIC CONVERSATION DATED 29.07.2022 Annexure R1(B) TRUE COPY OF THE PETITION DATED 02.08.2022 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE KERALA STATE CHILD RIGHTS COMMISSION