Kerala High Court
Dr.Fathimabi vs Asharaf Cheerangan on 18 September, 2015
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 29TH DAYOF JULY 2016/7TH SRAVANA, 1938
Tr.P(C).No. 382 of 2016 ()
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TO TRANSFER OP(G&W) NO.237/2015 OF FAMILY COURT,MALAPPURAM TO ANY
OTHER FAMILY COURT OUTSIDE MALAPPURAM DISTRICT.
......
PETITIONER(S):
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DR.FATHIMABI,
AGED 35 YEARS, D/O KOYAMU,
MANGATTIL HOUSE, SWAGATHAMADU,
CHERUSSOLA P.O., PIN-676 510,
TIRUR TALUK, MALAPPURAM
BY ADV. SRI.K.I.SAGEER.
RESPONDENT(S):
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ASHARAF CHEERANGAN,
AGED:47 YEARS, S/O KUNHALAN,
CHEERANGAN HOUSE, VILLUR AMSOM,
INDIANUR DESOM, KOTTACKAL P.O., PIN-676 503,
MALAPPURAM DISTRICT.
BY ADV. SRI.K.K..MOHAMED RAVUF.
THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-07-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
rs.
Tr.P(C).No. 382 of 2016
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A1 COPY OF THE PETITION FILED BY THE PETITIONER BEFORE
THE HONOURABLE FAMILY COURT, MALAPPURAM
DATED 18/09/2015.
ANNEXURE A2 COPY OF THE PETITION FILED BY THE PETITIONER BEFORE
THE HONOURABLE FAMILY COURT, MALAPPURAM
DATED 16/10/2015.
ANNEXURE A3 COPY OF THE PETITION FILED BY THE PETITIONER
BEFORE THE HONOURABLE FAMILYCOURT, MALAPPURAM
DATED 07/07/2016.
ANNEXURE A4 COPY OF THE FACEBOOK MESSAGE.
ANNEXURE A5 COPY OF THE JUDGMENT DATED 29/01/2016 IN
OP(FC) NO.6/2016 OF THE DIVISION BENCH OF THIS
HONOURABLE COURT.
RESPONDENT'S ANNEXURES:-
ANNEXURE R1A COPY OF THE PETITION I.A. NO.974/2016 IN O.P. NO.237/2015
FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT,
MALAPPURAM.
ANNEXURE R1B COPY OF THE COUNTER FILED BY THE PETITIONER IN
THE ABOVE I.A.
ANNEXURE R1C COPY OF THE STATEMENT FILED; BY THE PETITIONER
BEFORE THE FAMILYCOURT, MALAPPURAM IN
O.P.NO.237/2015.
ANNEXURE R1D COPY OF THE COUNTER STATEMENT FILED BY THE
RESPONDENT IN THE ABOVE STATEMENT.
//TRUE COPY//
P.S.TO JUDGE
rs.
K. RAMAKRISHNAN, J.
..................................................
Tr.P.(C).No.382 of 2016
.......................................................
Dated this the 29th day of July, 2016.
O R D E R
This petition is filed by the petitioner for transfer of OP(G&W) No.237/2015 on the file of the Family Court, Malappuram to any other family court outside Malappuram district under section 24 of the Code of Civil Procedure.
2. It is alleged in the petition that the petitioner filed OP.No.716/2014 seeking custody of elder children, OP.No.717/2014 seeking dissolution of marriage, OP.No.732/2014 seeking return of gold ornaments and cash and MC.No.497/2014 for maintenance of the younger child. All these cases were originally filed before Family Court, Tirur. The respondent is the husband of the petitioner, who is a practicing lawyer in Tirur. Since he was practicing in Tirur, the cases were transferred to Family Court, Malappuram for disposal. There were some instances occurred, where the petitioner was threatened by the respondent and it is not possible for her to conduct the case in that court. The respondent approached this court for speedy disposal and this court, without ordering notice, allowed the application and directed the family court to dispose of the cases. According to the petitioner, if the trial of the cases are proceeded without the assistance of a lawyer, it will cause irreparable hardship to her. So the petition was filed to transfer OP (G&W).No.237/2015 pending before Family Court, Malappuram to Tr.P.(C).No.382 of 2016 2 some other court outside Malappuram district.
3. The respondent entered appearance and filed a detailed counter in which apart from denying the allegations made it has been stated that the evidence has already been started and the petitioner's evidence is over, the respondent and some other witnesses were examined, the respondent's evidence is in progress and it is thereafter that the present petition has been filed.
4. Considering the nature of relief claimed on the basis of the allegations in the petition and the counter statement, this court has called for a report from the Family Court, Malappuram regarding the present stage of the case and the Family Court Judge has sent a report which reads as follows:
"With reference to the above, I may report that O.P.237/2015 is tried jointly with OP.236/2015, 237/2015, 238/2015 and MC.115/2015. The respondent's evidence is in progress. The respondent and a witness were examined in full. Three other witnesses wee examined in part. (The cross examination of the witnesses were deferred on an application filed by the counsel for the petitioner). The case stands posted to 27.07.2016 for cross examination of Rws 3 to 5 and record the further evidence of the respondent."
5. Heard learned counsel appearing for the petitioner Sri. K.I. Sageer Ibrahim and learned counsel appearing for the respondent Sri. Mohammed Ravuf. Both submitted their submissions on the Tr.P.(C).No.382 of 2016 3 basis of the allegations made in the petition and counter affidavit respectively.
6. It is seen from the report of the family court that there were four cases pending as OP.No.237/2015, 236/2015,238/2015 and MC.No.115/2015 all filed by the petitioner against the respondent for several reliefs. It is also seen from the report that joint trial was allowed and evidence was recorded in OP.No.237/2015 and Pws 1 to 5 were examined on the side of the petitioner and respondent and one witness were examined. Thereafter three other witnesses were examined in chief and it was at that time the petitioner filed a petition for adjournment for cross examination of the witnesses and accordingly it was deferred and posted to 27.7.2016 for cross examination of Rws 3 to 5 and for further evidence of the respondent.
7. When the petition came up for hearing today, learned counsel appearing for the respondent submitted that cross examination of Rws 3 to 5 were also completed. Except the allegations made, there is nothing on record to show that the petitioner is not in a position to conduct the case in Family Court, Malappuram. Further she wants transfer of only one of the case namely OP.No.237/2015 alone. Learned counsel submitted that since common trial was ordered, she need only sought for transfer of that case alone. She could have made a request for transfer Tr.P.(C).No.382 of 2016 4 of other cases also which was not done in this case. Since evidence has already been started and the petitioner's evidence is over and part of the respondent's evidence is also over, it is not proper on the part of this court to invoke section 24 of the Code of Civil Procedure to transfer those cases to other courts as claimed in the petition. There is no bonafides in filing the petition for transfer. So the prayer is liable to be rejected.
In the result, this petition is dismissed. Office is directed to communicate a copy of this order to the Family Court, Ernakulam by Fax immediately Sd/-
K. RAMAKRISHNAN, JUDGE.
/true copy/ P.S to Judge cl