Aysha v. Ali Abdul Latheef

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2022-07-22
Court Decision / Holding: The transfer petition fails and it is dismissed.
Final Disposition: Transfer petition dismissed.

Parties to the Case

Appellants / Petitioners

Aysha

Respondents

Ali Abdul Latheef

Legal Representation & Advocates

Counsels for Petitioners

• Baby Mathew

Counsels for Respondents

• D. Leema Rosy

Case Synopsis & Summary

This transfer petition arises under Section 24 CPC, seeking transfer of GOP No. 1667/2021 (Family Court, Thrissur) to the Family Court, Kasaragod. Aysha, the petitioner, is the wife of Ali Abdul Latheef and mother of a five-year-old child, Aaliyah Ali. The respondent filed OP No. 1677/2021 for permanent custody of the child and IA 3/2021 for temporary custody. The Thrissur Family Court, without notice, passed Annexure-4 ad-interim orders restraining Aysha from removing the child from its jurisdiction. Aysha, a dentist employed in Manglore, contends she will face substantial hardship contesting the proceedings if required to travel to Thrissur; hence, she seeks transfer to Kasaragod. The respondent counters that Aysha has violated Annexure-4 by taking the child to Qatar and has approached this Court via W.P.(C) No.12348/2021; thus, the transfer is immaterial as the custody matter can be heard in Thrissur or Kasaragod. The Court notes Aysha’s Thrissur domicile and current Manglore residence, and her admission of being in Qatar with the child in violation of Annexure-4. Citing Vidya Mundekkat v. Akhilesh Jayaram, it is stressed there is no invariable rule to exercise Section 24 discretionary power. On considering the pleadings and the fact of flight, the Court declines to exercise the Section 24 discretion and dismisses the petition.

Provisions of Law Cited

Section 24 of the Code of Civil Procedure, 1908 (CPC)

Legal Doctrines & Maxims

Discretionary power of the Court under Section 24 CPC; no invariable rule to grant transfer on inconvenience
A person who violates a court order is not entitled to equitable or discretionary relief

Submissions & Arguments

Contentions of Appellants / Petitioners

Aysha contends that the hardship of traveling from Manglore to Thrissur and the interim restraint order hinder her ability to contest GOP No. 1677/2021 in Thrissur. She seeks transfer of the custody matter to Kasaragod under Section 24 CPC, arguing her residence and work commitments abroad (Manglore) make local forum inconvenient and that a transfer would serve the child’s and petitioner’s interests. Respondent alleges the petition should be dismissed as immaterial since the custody case can proceed wherever; he also asserts Aysha violated Annexure-4 by taking the child to Qatar and has filed a W.P. (C) 12348/2021.

Contentions of Respondents

Respondent Ali Abdul Latheef contends that the petitioner’s location is irrelevant to the forum for adjudication and that the transfer should be denied. He asserts Aysha fled with the child to Qatar in breach of Annexure-4 and has pursued a parallel W.P. (C) 12348/2021; thus, the transfer would not affect the case and should be dismissed. He emphasizes that the court should not facilitate a transfer due to the petitioner’s relocation and alleged non-compliance with court orders.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vidya Mundekkat v. Akhilesh Jayaram	2021(6) KHC 506	Positive	Cited to support the proposition that there is no invariable rule that the court must exercise its discretionary power under Section 24 CPC merely due to inconvenience; the court may deny transfer based on the circumstances.

Extracted Judgment Text

Exact text extracted from official judgment records.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 ``` ``` TR.P(C) NO. 472 OF 2021 ``` ``` IN GOP NO.1677/2021 OF FAMILY COURT,THRISSUR ``` ## `PETITIONER:` ``` AYSHA, AGED 29 YEARS, D/O. MUHAMMED C.P., CHALAPURATHU, EDAKKIZHIYOOR, CHAVAKKAD P.O., THRISSUR DISTRICT-682 515, NOW RESIDING AT NIASHA YOUTH HOSTEL, 4-18/29, NIASHA HOSTEL ROAD, PANDITH HOUSE, PARMANNUR, ULLAL, MANGLORE, 575 017. ``` ``` BY ADV BABY MATHEW ``` ## `RESPONDENT:` ``` ALI ABDUL LATHEEF, AGED 36 YEARS, S/O. ABDUL LATHEEF, RESIDING AT PEEDIYANKAD HOUSE, EDAKKIZHIYOOR, CHAVAKKAD P.O., THRISSUR DISTRICT-682515. ``` ``` BY ADV D.LEEMA ROSY ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)No.472/2021 ``` ``` -:2:- ``` Dated this the 22[nd] day of July,2022 ## **O R D E R** The transfer petition is filed under Section 24 of the Code of Civil Procedure,1908(in short, 'C.P.C.'), seeking to transfer G.O.P.No.1667/2021(Annexure-1) from the Family Court,Thrissur, to the Family Court, Kasaragod. 2. The petitioner’s case, in the nutshell, relevant for the determination of the transfer petition is that: she is the wife of the respondent. They have a five year old child named ‘Aaliyah Ali’ born in the wedlock. At the time of the birth of the child, the respondent was pursuing his post graduation in Pathology in Manglore. The respondent treated the petitioner with matrimonial cruelty. Suppressing the above facts, the ``` Tr.P.(C)No.472/2021 ``` ``` -:3:- ``` respondent filed O.P.No.1677/2021 for the permanent custody of the child. He also filed I.A.No.3/2021(Annexure-3), seeking the temporary custody of the child. The Family Court, Thrissur, without notice to the petitioner, passed Annexure-4 ad-interim order restraining the petitioner from removing the child from the jurisdiction of the Family Court. The petitioner is a Dentist. She is working in Manglore. The petitioner would find it difficult to travel all the way from Manglore to Thrissur, to contest G.O.P.No.1677/2021(Annexure-1). Hence, the transfer petition. 3. The respondent has filed a counter affidavit, denying the allegations in the transfer petition. He has contended that the petitioner has flouted Annexure-4 order by removing the child from the jurisdiction of the Family Court, Thrissur and fleeing to Qatar. The ``` Tr.P.(C)No.472/2021 ``` ``` -:4:- ``` respondent has approached this Court by filing W.P. (C)No.12348/2021, which is pending consideration. Therefore, it is immaterial so far as the petitioner is concerned, whether the case is tried by Family Court, Thrissur or Kasaragod. Hence the transfer petition may be dismissed. 4. Heard; Sri. Baby Mathew, the learned counsel appearing for the petitioner and Smt.D. Leema Rosy, the learned counsel appearing for the respondent. 5. It is evident from the cause title of the transfer petition that the petitioner is a permanent resident of Thrissur and is presently residing at Ullal, Manglore. 6. Undisputedly, the Family Court, Thrissur, by Annexure-4 order, has restrained the petitioner from removing the child from outside its jurisdiction until further orders. The order is still in force and has not ``` Tr.P.(C)No.472/2021 ``` ``` -:5:- ``` been modified or varied. 7. The petitioner concedes that she is now in Qatar with the child, which is against the direction in Annexure-4. A person who has violated an order of the Court is not entitled to any equitable or discretionary relief. Moreover, it is immaterial for a person like the petitioner, who is living in Qatar, whether G.O.P.No.1677/2021 is tried before the Family Court, Thrissur or Family Court, Kasaragod. 8. This Court in **Vidya Mundekkat v. Akhilesh Jayaram** [2021(6) KHC 506] has held, there is no invariable rule that, whenever a wife makes a request pointing out the inconvenience that this Court is obliged to exercise its discretionary power under Section 24 of the CPC. 7. On a comprehensive consideration of the pleadings and materials on record, particularly, the ``` Tr.P.(C)No.472/2021 ``` ``` -:6:- ``` fact that the petitioner has fled the country with the child in violation of Annexure-4, I am not inclined to exercise the discretionary powers of this Court under Section 24 of the CPC. The transfer petition fails and it is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/22.07.22 //True copy/ P.A.To Judge ``` Tr.P.(C)No.472/2021 ``` ``` -:7:- ``` ## `APPENDIX` |`ANNEXURE 1`|`TRUE COPY OF THE MEMORANDUM OF GOP`| |---|---| ||`NO.1677/2021 OF THE FAMILY COURT,`| ||`THRISSUR.`| |`ANNEXURE 2`|`TRUE COPY OF THE EMAIL COMPLAINT DATED`| ||`18.8.2020 LODGED BEFORE THE MANGLORE`| ||`POLICE.`| |`ANNEXURE 3`|`TRUE COPY OF THE PETITION AND AFFIDAVIT`| ||`IN IA NO.3/2021 IN G O P NO.1677/21.`| |`ANNEXURE 4`|`TRUE COPY OF THE ORDER DATED 8.9.2021`| ||`OF THE FAMILY COURT, THRISSUR IN IA`| ||`NO.3/2021.`| |`ANNEXURE 5`|`TRUE COPY OF THE ADMISSION LETTER`| ||`ISSUED BY NIASHA YOUTH HOSTEL.`| |`RESPONDENTS’ EXHIBITS:`|| |`ANNEXURE RI(A)`|`THE TRUE COPY OF THE W.P. (C) NO.`| ||`12348/2021 FILED BY THE PETITIONER`| ||`BEFORE THE HON'BLE HIGH COURT OF`| ||`KERALA.`| |`ANNEXURE R1(B)`|`THE TRUE COPY OF THE VIOLATION PETITION`| ||`FILED BY THE PETITIONER BEFORE THE`| ||`HON'BLE FAMILY COURT, THRISSUR.`| |`ANNEXURE R1(C)`|`THE TRUE COPY OF THE PRESCRIPTIONS OF`| ||`DR. ANIL, CONSULTANT PSYCHIATRIST OF`| ||`KAKUNJE PSYCHIATRY & COUNSELLING`| ||`CENTRE, DATED 25/06/2020`| |`ANNEXURE R1(D)`|`THE TRUE COPY OF THE BILL FOR`| ||`REGISTRATION & CONSULTATION OF CENTRAL`| ``` Tr.P.(C)No.472/2021 ``` ## `-:8:-` ``` INSTITUTEOFBEHAVIOURSCIENCE, KADAVANTHRA, DATED 21/08/2013. ``` - `ANNEXURE RI(E)` - `TRUE COPY OF BILL FOR CONSULTATION OF CENTRAL INSTITUTE OF BEHAVIOURAL SCIENCE, KADAVANTHRA DATED 09/05/2013.` - `ANNEXURE R1(F) THE TRUE COPY OF THE EMAIL SENT BY THE PETITIONER TO THE RESPONDENT EXPRESSING HER GRATITUDE AFTER THEIR SEPARATION.` - `ANNEXURE RI(G) THE TRUE COPY OF THE EMAIL COMMUNICATIONS BETWEEN THE PETITIONER AND THE RESPONDENT.` - `ANNEXURE R1(H) TRUE COPY OF THE LETTER OF REQUEST GIVEN BY THE PETITIONER TO THE SCHOOL AUTHORITIES SEEKING THE ISSUE OF THE TRANSFER CERTIFICATE DATED 02.03.2022.` - `ANNEXURE R1(1): TRUE COPY OF THE BONAFIDE CERTIFICATE OF THE MINOR WARD ISSUED BY SIR SYED ENGLISH MEDIUM SCHOOL, PAAVARATTY, DATED 08.04.2022.` - `ANNEXURE R1 (J): TRUE COPY OF THE SCREENSHOT OF THE WEBSITE OF THE QATARI MINISTRY OF INTERIOR REFLECTING THE CHANGE IN VISA STATUS OF THE MINOR.`