Sanju Thomas vs Aiden Thomas on 18 June, 2025

[Cites 15, Cited by 0]

Kerala High Court

Sanju Thomas vs Aiden Thomas on 18 June, 2025

The appellant who is the petitioner in Tr.P(Crl.) No.123 of 2024 challenges in this appeal instituted under Section 5(i) of the Kerala High Court Act, 1958, the order of the learned Single Judge dismissing the transfer petition.

2. The respondent is the minor son of the appellant. The estranged wife of the appellant instituted M.C.No.52 of 2024 before the Family Court, Muvattupuzha, invoking Section 125 of the Code of Criminal Procedure (the Code), corresponding to Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), claiming maintenance for the respondent. The parents of the petitioner, in the meanwhile, instituted a proceedings before the Family Court, Malappuram 2025:KER:44615 Tr.Appeal (Crl) No.1 of 2025 -: 4 :- under the Guardians and Wards Act for the custody of the respondent. The petitioner, in the circumstances preferred Tr.P(Crl.) No.123 of 2024 before this Court seeking orders transferring M.C.No.52 of 2024 pending before the Family Court, Muvattupuzha to the files of the Family Court, Malappuram. The learned Single Judge dismissed the transfer petition taking the view that while considering transfer petitions in family matters, the convenience of the wife has to be given predominance. The petitioner is aggrieved by the said decision of the learned Single Judge, and hence this appeal.

3. The records reveal that the transfer petition was one instituted invoking Section 24 of the Code of Civil Procedure (CPC) and it was numbered initially as Tr.P(C) No.765 of 2024. But, in the course of the proceedings, the Registry converted the transfer petition, suo motu, as one instituted under Section 447 of the BNSS and renumbered the same as Tr.P(Crl) No.123 of 2024 and it is in exercise of the power conferred under Section 447 of the BNSS that the impugned order has been passed.

2025:KER:44615 Tr.Appeal (Crl) No.1 of 2025 -: 5 :-

4. When the appeal came up for admission before this Court, the learned counsel for the respondent contended that inasmuch as the transfer petition is one entertained under Section 447 of the BNSS, the appeal is not maintainable. In Babu v. Kunjumol Nandiyanathayil, 2017 SCC OnLine Ker 4440, a Full Bench of this Court has held that no appeal would lie under Section 5(i) of the Kerala High Court Act, 1958, against an order passed by the Single Judge under Section 407 of the Code. The learned counsel relied on the said decision in support of his contention that the appeal is not maintainable.

5. Per contra, though the learned counsel for the appellant conceded that if the transfer petition is treated as one entertained under Section 447 of the BNSS, the dictum in Babu squarely applies to the facts of the case, it was argued that the transfer petition from which the appeal arises has to be treated as one entertained under Section 24 of the CPC and that, therefore, it cannot be said that the appeal is not maintainable. In order to buttress this argument, the learned counsel for the appellant submitted that a Family Court cannot 2025:KER:44615 Tr.Appeal (Crl) No.1 of 2025 -: 6 :- be treated as a criminal court subordinate to the authority of the High Court for the purpose of exercising the power under Section 447 of the BNSS and it is on the assumption that a Family Court is a criminal court subordinate to authority of the High Court that the Registry converted, suo motu, the transfer petition as one instituted under Section 447 of the BNSS.

6. The learned counsel for the respondent does not dispute the fact that if the impugned order is treated as one rendered under Section 24 of the CPC, the appeal is certainly maintainable. His contention, however, is that the Family Court, while dealing with an application under Section 144 of the BNSS exercises the power of a First Class Magistrate, who presides over a criminal court in terms of Section 6 of the BNSS.

7. We have considered the arguments advanced by the learned counsel for the parties on either side.

8. As noted, the very basis of the contention that the power conferred on this Court under Section 447 of the BNSS cannot be exercised in relation to a proceedings 2025:KER:44615 Tr.Appeal (Crl) No.1 of 2025 -: 7 :- instituted under Section 144 of the BNSS is that the Family Court, while dealing with an application under Section 447 of the BNSS, cannot be treated as a criminal court. A Full Bench of this Court has held in Sathyabhama v. Ramachandran, 1997 SCC OnLine Ker 292, on an analysis of the various provisions contained in the Family Courts Act, 1984 that while dealing with an application under Section 125 of the Code, inasmuch as the procedure prescribed for the same under the Family Courts Act, 1984 is the procedure prescribed under the Code, the Family Court can be considered only as a criminal court or at least as a court acting as a criminal court. The relevant paragraphs of the judgment of the Full Bench read thus:

"13. The statutory prescription that the provisions in the Cr.P.C. shall apply to the proceedings under Section 7(2)(a) of the Act would also indicate that Family Court while disposing of the proceedings under Section 7(2)(a) can be considered only as a criminal court or at least as a court acting as a criminal court. At any rate, we are of the view that it may not be legal or logical to treat the Family Court as a civil court while exercising jurisdiction under Section 7(2)(a) of the Act. The weighty observation of Beanmont C.J. in the decision reported in Emperor v. Bhatu Sadu (AIR 1938 Bombay 225) strongly relied upon by Shri Vijaya Bhanu is relevant and can be usefully quoted in this connection:

"..........If the Court hearing the appeal is a Civil Court it seems to me that its procedure must be governed by the Civil Procedure Code, and if the Court holds that the 2025:KER:44615 Tr.Appeal (Crl) No.1 of 2025 -: 8 :- procedure is governed by the Criminal Procedure Code, that must be on the basis that the Court is acting as a Criminal Court, and if it is acting as Criminal Court, I do not see why the powers of revision should not be those conferred by S. 439, Criminal P.C., and not those conferred by S. 115, Civil P.C.............."

14. The learned Judge was considering the question whether a Civil Court while disposing of an appeal under Section 476B Cr.P.C. corresponding to Section 341 of the present Code, acts as a Civil Court or as a Criminal Court and whether High Court has jurisdiction to revise the judgment of the appellate court under Section 439 Cr.P.C. The situation in this case is also somewhat similar. As such we would in this case respectfully adopt the reasoning of the learned Judge and would hold that proceedings under Chapter IX Cr.P.C. before the Family Court could be governed by the provisions of the Cr.P.C. only on the basis that the court is acting as a Criminal Court. A Full Bench of the Punjab High Court has also followed the reasoning of Beaumont C.J., in the decision reported in Hakim Rai v. State (AIR 1957 Punjab 134 (F.B.).

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18. In the light of what is discussed above, we are of the view that while exercising jurisdiction under Section 7(2)(a) of the Act and disposing of applications filed under Chapter IX Cr.P.C., the Family Court acts as a Criminal Court and not as a Civil Court. In the circumstances, the view expressed by the Division Bench in its order dated 10.7.1997 cannot be accepted as correct. As such the revisions filed under Section 19(4) of the Act are liable to be treated as revisions filed against the orders passed by a court acting as a criminal court and not as a civil court. In this view, we would direct the office to number the revisions as R.P. (Family Court)' liable to be disposed of by a single judge under Section 3(8) of the High Court Act as a proceeding of a criminal court." The learned counsel for the appellant has no case that if the Family Court is a criminal court while dealing with an application under Section 144 of the BNSS corresponding to 2025:KER:44615 Tr.Appeal (Crl) No.1 of 2025 -: 9 :- Section 125 of the Code, this Court cannot exercise the power conferred under Section 447 of the BNSS to transfer such proceedings from the files of one family court to the files of another family court. Needless to say, the contention that the power under Section 447 of the BNSS is not available for transferring the proceedings under Section 144 of the BNSS, is only to be rejected. If that be so, the appeal is not maintainable and the same is dismissed as not maintainable.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

JOBIN SEBASTIAN, JUDGE.

YKB
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                               APPENDIX

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