Kerala High Court
Rithu Sebastian vs Dr.Robin Thomas on 27 July, 2016
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 30TH DAY OF AUGUST 2016/20168TH BHADRA, 1938
Tr.P(C).No. 456 of 2016 ()
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TO TRANSFER OP 571/2016 OF FAMILY COURT, ERNAKULAM TO FAMILY
COURT, BANGALORE(BENGALURU).
.........
PETITIONER/RESPONDENT:
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RITHU SEBASTIAN,
D/O.M.I.SEBASTIAN, MORIYADAN HOUSE,
MARIA VILLAGE, B-45, SECOND MAIN,
KEB LAYOUT, BTM FIRST STAGE,
BENGALURU- 560 029.
BY ADVS.SRI.K.M.FIROZ
SMT.M.SHAJNA
SRI.S.KANNAN
SMT.UMMUL FIDA
SRI.E.C.AHAMED FAZIL
RESPONDENT/PETITIONER:
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DR.ROBIN THOMAS,
AGED 31 YEARS, S/O BABY,
KOLENCHERY HOUSE,
ANGAMALY, ERNAKULAM.
BY ADV.SRI.T.M.RAMAN KARTHA
THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 30-08-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
mbr/
Tr.P(C).No. 456 of 2016 ()
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APPENDIX
PETITIONERS' ANNEXURES:
ANNEXURE A1 : TRUE COPY OF THE ORIGINAL PETITION IN OP.NO.571
OF 2016 FILED BY THE RESPONDENT BEFORE THE
FAMILY COURT, ERNAKULAM.
ANNEXURE A2 : A TRUE COPY OF THE INVITATION CARD OF THE
MARRIAGE AS WELL AS RECEPTION OF THE PETITIONER
AND RESPONDENT.
ANNEXURE A3 : A TRUE COPY OF THE SUMMONS DATED 27.7.2016
ISSUED TO THE PETITIONER FROM THE FAMILY COURT,
ERNAKULAM.
RESPONDENTS' ANNEXURES: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
K.RAMAKRISHNAN, J. [C.R.]
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Tr.P. (Civil) No.456 of 2016
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Dated this the 30th day of August, 2016
ORDER
This petition is filed by the petitioner, seeking transfer of O.P.571/2016 pending before the Family Court, Ernakulam to Family Court, Bangalore under section 23(3) of the Code of Civil Procedure.
2. It is alleged in the petition that the respondent married the petitioner as per custom on 23.08.2014. After residing for sometime, their relationship strained and they were residing separately. The respondent herein filed Annexure-A1 original petition as O.P.571/2016 for divorce under Section 10(1)(x) of the Divorce Act, 1869 before the Family Court, Ernakulam. The petitioner is working in Bangalore and it is difficult for her to come to Ernakulam to conduct the case. There is none to help her and she is suffering from traveling sickness as well. Further according to her, the petition for divorce is not maintainable before Family Court, Ernakulam, as cause of action for filing the application arose between the jurisdiction of Family Court, Bangalore. So the petitioner has no other remedy, except to approach this court, seeking the following reliefs:
(i) To call for the records leading to Annexure-A1 O.P.571/16 pending before the Family Court, Ernakulam and to transfer the said original petition from Family Court, Ernakulam Court, Bengaluru (Bangalore) to be heard and disposed of there.
(ii) To stay all further proceedings in O.P.No.571/2016 on the files of Family Court, Ernakulam, pending disposal of this Transfer O.P.
iii) To grant such ther reliefs in favour of the petitioner as this Hon'ble Court may deem fit to grant on the facts and in the circumstances of the case.Tr.P. (Civil) No.456 of 2016 2
3. Heard Sri.S.Kannan, learned counsel appearing for the petitioner and Sri.Ramankartha, learned counsel appearing for the respondent.
4. The counsel for the petitioner submitted that under section 23(3) of the Code of Civil Procedure, this court has got power to transfer the case pending before the subordinate court within the jurisdiction of this court to a court having jurisdiction under another High Court. He had relied on the decision reported in Jency v. Biju Thomas (2005 (4) KLT 766).
5. The counsel for the respondent submitted that, in view of the later decision of the Supreme Court in Durgesh Sharma v. Jayshree Sharma (2008(9) SCC 648) = (2008 KHC 4883) and Keerthi B Nair v. Rolland Andrade (2011 (4) KHC 310), this court has no jurisdiction to entertain such application and transfer the case.
6. It is an admitted fact that the respondent herein filed O.P.571/2016 before the Family Court, Ernakulam for divorce under Section 10(1)(x) of Divorce Act. That case is pending before the Family Court, Ernakulam. According to the petitioner herein, no part of the cause of action has arisen within the jurisdiction of Family Court, Ernakulam and as such that court has no jurisdiction to entertain the application. Further under section 23(3) of the Code of Civil Procedure, Tr.P. (Civil) No.456 of 2016 3 this court has power to transfer the case pending before a subordinate court within the jurisdiction of this court to some other court having control and supervision under the High Court of another State. It is true that in the decision reported in Jency v. Biju Thomas (2005(4) KLT 766), it has been held that, this court has got power to transfer the case. But in the decision reported in Durgesh Sharma v. Jayshree Sharma (2008(9) SCC 648)=(2008 KHC 4883), the Hon'ble Supreme Court has held that, if two courts are subordinate to different High Court, one High Court has no power/jurisdiction or authority to transfer a case pending in any court subordinate to that High Court to the Court Subordinate to other High Court, it is only the Supreme Court which may order the transfer. The scope of section 23, 24, and 25 of Code of Civil Procedure has been considered in that decision and held that in such circumstances, the apex court alone has got power to transfer the case from a court subordinate to one High Court to another court subordinate to another High Court and High Courts have no power to transfer the case invoking section 23(3) of the Code of Civil Procedure. This has been followed in the subsequent decision of this court in Keerthi B. Nair v. Rolland Andrade (2011 (4) KHC
310) = (2011(4) KLT 447) in similar set of circumstances. So a combined reading of these two decisions will go to show that section Tr.P. (Civil) No.456 of 2016 4 23(3) is subject to section 25 of the Code of Civil Procedure and apex court alone has got power to transfer cases from one court to another court subordinate to different High Courts. So the dictum laid down in the decision reported in Jency v. Biju Thomas (2005 (4) KLT 766) is not good law, in view of the subsequent decision of the apex court.
So the petition is not maintainable before this court and the same is hereby dismissed. The dismissal of the application will not preclude the petitioner to raise all her contentions before the Family Court regarding the jurisdictional issue and if such an issue is raised, it is for that court to consider and dispose of the same in accordance with law. Interim order of stay is vacated.
Registry is directed to communicate this judgment to the court below a the earliest.
Sd/-
(K. Ramakrishnan, Judge) //True Copy// P.A. to Judge ss