Kerala High Court
Aneesh P.Thomas vs D.Beena on 11 January, 2021
Bench: A.Hariprasad, P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
Tr.Appeal(C).No.9 OF 2019
AGAINST THE ORDER DTD.26.6.2019 IN TRP(C) 757 OF 2018 OF HIGH COURT OF KERALA
APPELLANT:
ANEESH P.THOMAS
AGED 44 YEARS
S/O.LATE P.G.THOMAS, MANNIL PUTHENVEETIL HOUSE,
KUMBAZHA P.O., PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.G.UNNIKRISHNAN
SRI.M.JAYAKRISHNAN
RESPONDENT:
D.BEENA
AGED 35 YEARS
D/O.DEVADAS, CHEEMUTTUVILAYIL, KADAYAL KALIYAL P.O.,
KANYAKUMARI DISTRICT, NOW RESIDING AT THENGUMTHURUTHEL
HOUSE, MANARCADU P.O., KOTTAYAM-686019.
R1 BY ADV. SMT.M.VANAJA
THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON
11.01.2021 A/W. Tr.APPEAL(C)NOS.10 & 11 of 2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Tr.Appeal(C) Nos.9, 10
& 11 of 2019 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
Tr.Appeal(C).No.10 OF 2019
AGAINST THE ORDER IN Tr.P(C) 759/2018 OF HIGH COURT OF KERALA
APPELLANT:
ANEESH P.THOMAS
AGED 44 YEARS
S/O.LATE P.G.THOMAS, MANNIL PUTHENVEETIL HOUSE,
KUMBAZHA P.O., PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.G.UNNIKRISHNAN
SRI.M.JAYAKRISHNAN
RESPONDENT:
D.BEENA
AGED 35 YEARS
D/O.DEVADAS, CHEEMUTTUVILAYIL, KADAYAL KALIYAL P.O.,
KANYAKUMARI DISTRICT, NOW RESIDING AT THENGUMTHURUTHEL
HOUSE, MANARCADU P.O., KOTTAYAM-686019.
R1 BY ADV. SMT.M.VANAJA
THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON
11.01.2021 A/W. Tr.APPEAL(C)NOS.9 & 11 of 2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Tr.Appeal(C) Nos.9, 10
& 11 of 2019 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
Tr.Appeal(C).No.11 OF 2019
AGAINST THE ORDER IN Tr.P(C) 764/2018 OF HIGH COURT OF KERALA
APPELLANT:
ANEESH P.THOMAS
AGED 44 YEARS
S/O. LATE P.G. THOMAS, MANNIL PUTHENVEETIL HOUSE,
KUMBAZHA P.O, PATHANAMTHITTA DISTRICT-689 653
BY ADVS.
SRI.G.UNNIKRISHNAN
SRI.M.JAYAKRISHNAN
RESPONDENT:
D.BEENA
D/O. DEVADAS, AGED 35 YEARS, CHEEMUTTUVILAYIL, KADAYAL
KALIYAL P.O, KANYAKUMARI DISTRICT, NOW RESIDING AT
THENGUMTHURUTHEL HOUSE, MANARCADU P.O, KOTTAYAM-686
019.
R1 BY ADV. SMT.M.VANAJA
THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON
11.01.2021 A/W. Tr.APPEAL(C)NOS.9 & 10 of 2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Tr.Appeal(C) Nos.9, 10
& 11 of 2019 4
A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ.
-----------------------------------------------------
Tr.Appeal(C) Nos.9, 10 & 11 of 2019
-----------------------------------------------------
Dated this the 11th day of January, 2021
COMMON JUDGMENT
Kunhikrishnan, J These three appeals are filed challenging the common order in Tr.P(C)Nos.757, 759 and 764 of 2018. The parties in these appeals are the same. Since these three transfer appeals are connected, we are disposing of these appeals by a common judgment.
2. The respondent herein filed OP(Div) No.1060 of 2016, OP No.28 of 2017 and MC No.253 of 2016 before the Family Court, Pathanamthitta. The appellant in these appeals is the respondent in the above three cases. The appellant is the husband of the respondent herein. OP(Div) No.1060 of 2016 was Tr.Appeal(C) Nos.9, 10 & 11 of 2019 5 filed for divorce and OP No.28 of2017 was filed for realisation of money and gold ornaments. MC No.253 of 2016 was filed by the respondent under Section 125 Cr.P.C for maintenance. The respondent filed Tr.P(C) Nos.757, 759 and 764 of 2018 to transfer OP No.28 of 2017, OP(Div)No.1060 of 2016 and MC No.253 of 2016 from the Family Court, Pathanamthitta to Family Court, Kottayam at Ettumanoor. The main contention of the respondent is that she is now residing at Manarcad in Kottayam, and the distance between Manarcad and Pathanamthitta is about 80 Kms. She contended in the transfer petition that she has to incur huge expenses for her travel itself.
3. The appellants filed separate counter affidavits before the learned Single Judge opposing the transfer. He contended that all the above applications were filed by the petitioner herself at Pathanamthitta and had been contesting the proceedings for about three years. There is absolutely no reason for her now to seek transfer is the contention of the appellant. The appellant Tr.Appeal(C) Nos.9, 10 & 11 of 2019 6 also contended that he is suffering from Locomotor disability and hence he is not in a position to travel.
4. After hearing both sides, the learned Single Judge allowed all three transfer petitions. Accordingly, OP No.28 of 2017, OP(Div) No.1060 of 2016 and MC No.253 of 2016 were transferred to Family Court, Ettumanoor. Aggrieved by the above transfer order, these three transfer appeals are filed by the appellant.
5. Heard the counsel for the appellant and the learned counsel for the respondent.
6. The counsel for the appellant submitted that the appellant is suffering from disabilities and he needs support for many of his activities of daily living. Hence, he is not in a position to travel. The counsel for the appellant submitted that the learned Single Judge had not considered the contentions of the appellant properly. The counsel submitted that since there is no dispute regarding the disability of the appellant, he did not Tr.Appeal(C) Nos.9, 10 & 11 of 2019 7 produce any disability certificate before the learned Single Judge. The counsel submitted that the contentions of the appellant were mainly rejected because no medical certificate is produced to show that the appellant is suffering from any disability. The counsel submitted that the appellant produced Annexure-VI certificate issued by a Consultant Neurologist of Mar Gregorios Memorial Muthoot Medical Centre at Pathanamthitta as an additional document in this appeal. Therefore, the appellant contends that the order passed by the learned Single Judge transferring the case from Pathanamthitta to Ettumanoor is without considering the contentions of the appellant. According to the counsel, the respondent contested the three cases at Family Court, Pathanamthitta for about three years. Thereafter, she filed the above transfer petition and that itself shows that there is no bonafides in the petitions. The counsel also submitted that the order transferring MC No. 253 of 2016 pending before the Family Court Pathanamthitta to Family Court, Ettumanoor invoking the Tr.Appeal(C) Nos.9, 10 & 11 of 2019 8 powers under Section 24 of the Civil Procedure Code is illegal. According to the counsel, only an application under Section 407 Cr.P.C is maintainable and the learned Single Judge erred in entertaining Transfer Petition (Civil) instead of a petition under Section 407 Cr.P.C.
7. The counsel for the respondent submitted that the learned Single Judge transferred the cases after considering the entire facts and circumstances of the case. The counsel disputed the genuineness of the medical certificate produced by the appellant in this appeal. According to the counsel for the respondent, the appellant has no difficulty in travelling and he is a person doing cultivation in his rubber estate. The counsel submitted that the respondent is a poor lady, who has no means to travel up to Pathanamthitta to contest the cases. The counsel submitted that there is no merit in the appeal.
8. Admittedly, the respondent herein filed OP(Div) No.1060 of 2016, OP No.28 of 2017 and MC No.253 of 2016 Tr.Appeal(C) Nos.9, 10 & 11 of 2019 9 before the Family Court, Pathanamthitta. It is now a settled position that if the wife files an application for transferring the case to a Court of her inconvenience, the Court should transfer the case normally unless there are strong circumstances to prove that the transfer will prejudice the interest of the husband. In this case, the main contention raised by the appellant for rejecting the transfer request is that he is suffering from Locomotor disability. But no materials were produced before the learned Single Judge to substantiate his contention. The learned Single Judge observed that absolutely no medical record was produced by the appellant to support his contention that he is suffering from Locomotor disorder. The counsel for the appellant submitted that he produced Annexure-VI certificate in these appeals to show that the appellant is suffering from disabilities. But the contents in Annexure-VI medical certificate is disputed by the respondent. Eventhough the respondent conceded that the appellant has some disability, the averments in Annexure-VI Tr.Appeal(C) Nos.9, 10 & 11 of 2019 10 medical certificate that he needs support for many of his activities of daily living and it would be difficult for him to travel etc are denied by the respondent. In such circumstances, we are not in a position to accept Annexure-VI medical certificate also. We see no reason to interfere with the transfer order passed by the learned Single Judge based on Annexure-VI medical certificate produced in this appeal.
9. The counsel for the appellant raised a legal contention that the order in Tr.P(C) No.764 of 2018 is passed by the learned Single Judge without jurisdiction. The learned counsel relied the judgment of the Allahabad High Court in Munna Lal and others v. State of UP and another (1991 KHC 1526) in which it is stated that an application filed under Section 125 Cr.P.C before the Family Court can be transferred by the High Court only by invoking the powers under Section 407 Cr.P.C. The counsel also relied the Full Bench decision of this Court in Satyabhama v Ramachandran (1997(2) KLT 503)(F.B) to contend that Tr.Appeal(C) Nos.9, 10 & 11 of 2019 11 when an application under Section 125 Cr.P.C is entertained by the Family Court, the Family Court acts as a Criminal Court and not as a Civil Court. The counsel also relied the Full Bench decision of this Court in Peter v Sara (2006(4) KLT 219) in which the Full Bench of this Court observed that the proceedings for maintenance before Family Court under Section (7)(2)(a) is criminal in nature. The sum and substance of the argument of the appellant is that the Tr.P(C) No.764 of 2018 filed by the respondent invoking the powers under Section 24 of the Civil Procedure Code is not maintainable and therefore, the learned Single Judge erred in transferring MC No.253 of 2016 which was filed before the Family Court for maintenance under Section 125 Cr.P.C. The contention of the appellant is that only an application under Section 407 Cr.P.C is maintainable.
10. It is true that there is some force in the above argument of the appellant. A Division Bench of this Court considered this point in Reshma v Jayan (2012(4) KLT 200). Tr.Appeal(C) Nos.9, 10 & 11 of 2019 12 The relevant portion is extracted here under.
"5. Chapter IX of Cr.P.C deals with the procedure for ordering maintenance for wives, children and parents. S.7(2) of the Family Courts Act, 1984 provides that an order passed by the Family Court under Chapter IX of the Cr.P.C shall be executed in the manner prescribed for execution of such order by the Code. When the Family Court is exercising the powers and jurisdiction under Chapter IX of the Cr.P.C, it is a Criminal Court equivalent to the Court of the Magistrate of the First Class and therefore, High Court can transfer a case from one Family Court to another Family Court under S.407 of the Cr.P.C. The necessary ingredients to invoke the jurisdiction of the High Court under S.407 Cr.P.C are;(1) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (2) that some question of law of unusual difficulty is likely to arise; or (3) that an order under the Section is required by any provision of the Code; or (4) to suit the general convenience of the parties or witnesses; or (5) it is expedient for the ends of justice."
11. The Full Bench in Satyabhama's case was considering the point whether a revision filed under Section 19(4) of the Family Court Act is liable to be treated and numbered as Civil Revision Petition or a Criminal Revision Petition. Whether a Transfer Petition(Civil) or Transfer Petition (Criminal) is Tr.Appeal(C) Nos.9, 10 & 11 of 2019 13 maintainable to transfer a petition under Section 125 Cr.P.C from the Family Court is not considered in Satyabhama's case by the Full Bench. Similarly, in Peter's case the Full Bench was considering the reference in which the question was whether a Family Court, while exercising the powers under Chapter IX of the Code of Criminal Procedure, can restore a petition which was dismissed for default. But the Division Bench of this Court in Reshma's case(Supra) considered the point arising in this case directly and observed that the remedy of a person to get a transfer of a petition under Section 125 Cr.P.C pending before the Family Court is to file an application before this Court under Section 407 Cr.P.C. So we need not consider the judgment of the Full Bench in detail in this case.
12. It is true that the learned Single Judge transferred MC No.253 of 2016 from Family Court,Pathanamthitta to Family Court, Ettumanoor by entertaining Tr.P(C) No.764 of 2018. Simply because a wrong Section is quoted in the petition, this Tr.Appeal(C) Nos.9, 10 & 11 of 2019 14 Court cannot set aside that order at this distance of time. The transfer petition was allowed on 26.6.2019. Even though there was a stay order for a period of two months at the time when this appeal was admitted on 5.8.2019, it was not extended thereafter. Moreover, the other two connected cases were already transferred by invoking the powers under Section 24 of the Civil Procedure Code. Admittedly, the parties in all the three cases are same. All the three cases are to be tried and disposed of by the same Court. In such circumstances, we do not want to interfere with the order passed in Tr.P.(C)No.764 of 2018 by which this Court transferred MC No.253 of 2016 from Family Court, Pathanamthitta to Family Court, Ettumanoor.
13. At this stage, the counsel for the appellant submitted that, if this Court is not inclined to set aside the orders impugned in these transfer appeals, there may be a direction to the Family Court, Kottayam at Ettumanoor to allow the appellant to contest the case through Video Conferencing. The learned counsel relied Tr.Appeal(C) Nos.9, 10 & 11 of 2019 15 the judgment of the Apex Court In Re:Guidelines for Court Functioning through Video Conferencing during Covid-19 Pandemic (2020 (2) KHC 521). In the above judgment, the Apex Court, by exercising the powers conferred on the Supreme Court of India under Article 142 of the Constitution of India, issued the following directions in connection with the Court functioning during Covid-19 pandemic.
6. Therefore, in exercise of the powers conferred on the Supreme Court of India by Article 142 of the Constitution of India to make such orders as are necessary for doing complete justice, we direct that:
i. All measures that have been and shall be taken by this Court and by the High Courts, to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful;
ii. The Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies; and iii. Consistent with the peculiarities of the judicial system in every state and the dynamically developing public health situation, every High Court is authorised to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies;
iv. The concerned courts shall maintain a helpline to ensure that any complaint in regard to the Tr.Appeal(C) Nos.9, 10 & 11 of 2019 16 quality or audibility of feed shall be communicated during the proceeding or immediately after its conclusion failing which no grievance in regard to it shall be entertained thereafter.
v. The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court.
vi. The Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities. If necessary, in appropriate cases courts may appoint an amicus-curiae and make video conferencing facilities available to such an advocate.
vii. Until appropriate Rules framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.
viii. The presiding officer shall have the power to restrict entry of persons into the court room or the points from which the arguments are addressed by the advocates. No presiding officer shall prevent the entry of a party to the case unless such party is suffering from any infectious illness. However, where the number of litigants are many the presiding officer shall have the power to restrict the numbers. The presiding officer shall in his discretion adjourn the proceedings where it is not possible to restrict the number.
14. Subsequently, the clause VI of paragraph 6 in the above judgment was substituted by another clause as per order Tr.Appeal(C) Nos.9, 10 & 11 of 2019 17 dated 26.10.2020, which is reported as In Re:Guidelines for Court Functioning through Video Conferencing during Covid-19 Pandemic (2020(6)KLT 176 (SC). The relevant portion is extracted hereunder:
We propose to substitute sub-para (vii) of Paragraph 6 with the following:
The Video Conferencing in every High Court and within the jurisdiction of every High Court shall be conducted according to the Rules for that purpose framed by that High Court. The Rules will govern Video Conferencing in the High Court and in the district courts and shall cover appellate proceedings as well as trials.
We are given to understand that several High Courts have framed their rules already. Those High Courts that have not framed such Rules shall do so having regard to the circumstances prevailing in the State. Till such Rules are framed, the High Courts may adopt the model Video Conferencing Rules provided by the E-Committee Supreme Court of India to all the Chief Justices of the High Court [Emphasis supplied]
15. It is informed by the counsel for the appellant that even though a decision is taken to amend the High Court Rules for providing Video Conferencing, the same is not notified so far.
In such circumstances, in the light of the observation of the Apex Tr.Appeal(C) Nos.9, 10 & 11 of 2019 18 Court in the above judgment, there is no difficulty in allowing Video Conferencing in appropriate cases.
16. In this case, admittedly, the appellant has some Locomotor disability. The dispute by the respondent is only about the gravity of the disability. In such circumstances, there can be a direction to the Family Court, Kottayam at Ettumanoor to allow the appellant to appear and adduce evidence in the above three cases (which was numbered before the Family Court, Pathanamthitta as OP(Div) No.1060 of 2016, OP No.28 of 2017 and MC No.253 of 2016) through Video Conferencing, if such an application is filed by him before the Family Court, Kottayam at Ettumanoor through his counsel. But we make it clear that the Family Court is at liberty to direct the appellant to appear in person in situations where his presence is inevitable.
17. Therefore, these three transfer appeals are dismissed. But we make it clear that if the appellant files an application to appear and adduce evidence in the divorce proceedings, money Tr.Appeal(C) Nos.9, 10 & 11 of 2019 19 suit and in the maintenance case through Video Conferencing, the Family Court will allow the same subject to such conditions which the court deems fit.
With these observations, these three Transfer Appeals are dismissed.
Sd/-
A. HARIPRASAD, JUDGE.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE cms Tr.Appeal(C) Nos.9, 10 & 11 of 2019 20 Tr.Appeal(C) No. 9 of 2019 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF O.P.28/17 OF THE FAMILY COURT, PATHANAMTHITTA.
ANNEXURE II TRUE COPY OF THE OBJECTION IN O.P.28/17 OF THE FAMILY COURT, PATHANAMTHITTA.
ANNEXURE III TRUE COPY OF TRANSFER PETITION (C) 757/18 FILED BEFORE THIS HON'BLE COURT.
ANNEXURE IV TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE APPELLANT IN THE TRANSFER PETITION (C).
ANNEXURE V CERTIFIED COPY OF THE ORDER DATED 26.6.19 IN TR.P(C) 757/2018 OF THIS HON'BLE COURT.
ANNEXURE VI MEDICAL CERTIFICATE DATED 22.07.19 ISSUED BY DR.JIBU K.JO, CONSULTANT NEUROLOGIST, MAR GREGORIOUS MEMORIAL MUTHOOT MEDICAL CENTRE.
RESPONDENT'S EXTS NIL /TRUE COPY/
P.S.TO JUDGE
cms
Tr.Appeal(C) Nos.9, 10
& 11 of 2019 21
Tr.Appeal(C) No. 10 of 2019
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE I TRUE COPY OF O.P.(DIV) 1060/16 OF THE FAMILY
COURT, PATHANAMTHITTA.
ANNEXURE II TRUE COPY OF THE OBJECTION IN O.P.(DIV)1060/16
OF THE FAMILY COURT, PATHANAMTHITTA.
ANNEXURE III TRUE COPY OF TRANSFER PETITION (C)759/18 FILED
BEFORE THIS HON'BLE COURT.
ANNEXURE IV TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY
THE APPELLANT IN THE TRANSFER PETITION (C).
ANNEXURE V CERTIFIED COPY OF THE ORDER DATED 26.6.19 IN TR.P(C) 759/2018 OF THIS HON'BLE COURT.
ANNEXURE VI MEDICAL CERTIFICATE DATED 22.07.19 ISSUED BY DR.JIBU K.JO, CONSULTANT NEUROLOSIT, MAR GREGORIOUS MEMORIAL MUTHOOT MEDICAL CENTRE.
RESPONDENT'S EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms Tr.Appeal(C) Nos.9, 10 & 11 of 2019 22 Tr.Appeal(C) No. 11 of 2019 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE I TRUE COPY OF M.C. 253/16 OF THE FAMILY COURT, PATHANAMTHITTA.
ANNEXURE II TRUE COPY OF THE OBJECTION IN M.C. 253/16 OF THE FAMILY COURT, PATHANAMTHITTA.
ANNEXURE III TRUE COPY OF TRANSFER PETITION(C) 764/18 FILED BEFORE THIS HON'BLE COURT.
ANNEXURE IV TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE APPELLANT IN THE TRANSFER PETITION(C) ANNEXURE V CERTIFIED COPY OF THE ORDER DT. 26.6.19 IN TR.P(C) 764/2018 OF THIS HON'BLE COURT.
ANNEXURE VI MEDICAL CERTIFICATE DT. 22.07.2019 BY DR. JIBU K.JO. CONSULTANT NEUROLOGIST, MAR GREGORIOS MEMORIAL MUTHOOT MEDICAL CENTRE.
RESPONDENT'S EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms