Fathimabi M. v. Muhammed Ashraff

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 2ND DAY OF NOVEMBER 2017/ 11TH KARTHIKA, 1939** ## **Tr.P(C).No. 508 of 2017 ()** **----------------------------------------** **OP(G.W).NO. 83/2017 OF FAMILY COURT, TIRUR** ## **PETITIONER/RESPONDENT:** **-----------------------------------------** **FATHIMABI M., AGED 39 YEARS, D/O.KOYAMU, MANGATTIL HOUSE, CHERUSHOLA P.O., SWAGATHAMADU, TIRUR TALUK-676 510, MALAPPURAM DISTRICT, PRESENTLY RESIDING AT MURINGAPURAI, MUKKAM, KUMARANELLOOR P.O., KOZHIKODE DT., PIN-673 602.** **BY ADV. SMT.K.V.BHADRA KUMARI** **RESPONDENT/PETITIONER: ------------------------------------------** **MUHAMMED ASHRAFF, AGED 46 YEARS, S/O.KUNJALAN, CHEERANGAN HOUSE, VILLUR, INDIANUR P.O., KOTTAKKAL, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676 503.** **BY ADV. SRI.K.K.MOHAMED RAVUF** **THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-11-2017,ALONG WITH TR.P(C).NO.609/2017 AND TR.P(C).NO. 610/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Tr.P(C).No. 508 of 2017 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** ## **ANNEXURE 1 COPY OF THE PETITION O.P.(G.W) NO.83/2017 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THIRUR.** **ANNEXURE II COPY OF THE RECEIPT DATED 1/6/2017 FOR PAYMENT OF P.T.A. FUND ISSUED BY THE HEAD MISTRESS, G.L.P SCHOOL, AANAYAMKUNNU TO ME.** **ANNEXURE III COPY OF THE 'SEARCH WARRANT' ISSUED BY THE FAMILY COURT, TIRUR IN IA.NO.1152/2017 IN IA.NO.1031/2017 IN IA.NO.184/2017 IN OP.NO.83/2017 DATED 25/7/2017.** ## **RESPONDENT'S ANNEXURES:** **ANNEXURE R1(A) COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN IA.NO.184/2017 IN OP(GW0 NO.83/2017 BEFORE FAMILY COURT, TIRUR.** - **ANNEXURE R1(B) COPY OF THE I.A.NO.523/2017 FILED BY THE PETITIONER IN OP (GW) NO.83/2017 BEFORE FAMILY COURT, TIRUR.** - **ANNEXURE R1(C) COPY OF THE COMMON ORDER DATED 24/4/2017 IN IA.NO.184/2017 AND 523/2017 IA.NO.184/2017 IN OP(GW) NO.83/2017 OF FAMILY COURT, TIRUR.** - **ANNEXURE R1(D) COPY OF THE MEMORANDUM OF OP(FC) NO.310/2017 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT. (WITHOUT EXHIBITS)** - **ANNEXURE R1(E) COPY OF THE JUDGMENT DATED 2/6/2017 IN OP(FC) NO.310/2017 OF THIS HON'BLE COURT.** - **ANNEXURE R1(F) COPY OF THE OP(GW) NO.382/2017 FILED BY THE PETITIONER BEFORE FAMILY COURT, TIRUR** - **ANNEXURE R1(G) COPY OF THE OP NO.59/2017 FILED BY THE RESPONDENT HEREIN BEFORE FAMILY COURT, TIRUR.** - **ANNEXURE R1(H) COPY OF THE OP.NO.73/2017 FILED BY THE RESPONDENT HEREIN BEFORE FAMILY COURT, TIRUR** - **ANNEXURE R1(I) COPY OF THE M.C.NO.8/2017 FILED BY THE PETITIONER BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MALAPPURAM** - **ANNEXURE R1(J) COPY OF THE MC.NO.9/2017 FILED BY THE PETITIONER BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MALAPPURAM** **2/-** **-2-** **Tr.P(C).No. 508 of 2017 ()** **ANNEXURE R1(K) COPY OF THE INTERIM ORDER DATED 18/2/2017 IN CMP.NO.911/2017 IN MC.NO.9 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, MALAPPURAM** **ANNEXURE R1(L) COPY OF THE ORDER DATED 29/7/2016 IN TR.P(C) NO.382/2016 OF THIS HON'BLE COURT** **ANNEXURE R1(M) COPY OF THE ORDER DATED 30/6/2017 IN IA.NO.1031/2017 IN IA.NO.184/2017 IN OP.NO.83/2017 OF FAMILY COURT, TIRUR** **ANNEXURE R1(N) COPY OF THE IA.NO.1152/2017 IN IA.NO.1031/2017 IN IA.NO.184/2017 IN OP(GW) NO.83/2017 FILED BY THE RESPONDENT BEFORE FAMILY COURT, TIRUR.** **ANNEXURE R1(O) COPY OF THE IA.NO.1198/2017 IN IA.NO.1152/2017 IN IA.NO.1031/2017 IN IA.NO.184/2017 IN OP(GW) NO.83/2017 FILED BY THE RESPONDENT BEFORE FAMILY COURT, TIRUR.** **ANNEXURE R1(P) COPY OF THE ORDER SHOWING THAT THE PETITIONER IS NO LONGER HAS ANY JOB AT MUKKOM.** **ANNEXURE R1(Q) COPY OF THE REPORT DATED 30/7/2017 SUBMITTED BY THE S.I OF POLICE, KOTTAKKAL BEFORE THE FAMILY COURT, TIRUR.** **ANNEXURE R1(R) COPY OF THE ORDER DATED 25/7/2017 IN OP.NO.83/2017 OF FAMILY COURT, TIRUR.** **ANNEXURE R1(S) COPY OF THE JUDGMENT DATED 30/8/2017 IN OP(FC) NO.452/2017 OF THIS HON'BLE COURT.** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **ANIL K. NARENDRAN, J.** ==================== ## **Tr.P.(C)Nos.508, 609 and 610 of 2017** ==================== **Dated this the 2[nd] day of November, 2017** ## **O R D E R** Tr.P.(C)No.508 of 2017 is one filed by petitioner/wife under Section 24 of the Code of Civil Procedure, 1908 seeking an order to transfer O.P.(G.W.)No.83 of 2017 pending before the Family Court, Tirur to the Family Court, Kozhikode. The said original petition is one filed by the respondent/husband seeking custody of the minor child 'Asadul Hind Fatah Ali Tipu', the youngest child born out of the wedlock. 2. Tr.P.(C)No.609 of 2017 is one filed by the petitioner/ wife seeking an order to transfer O.P.No.73 of 2017 on the file of the Family Court, Tirur to the Family Court, Kozhikode. The said original petition is one filed by the first respondent/husband seeking return of Rs.7,00,000/- from the petitioner/wife and her father, who is arrayed as the second respondent herein. 3. Tr.P.(C)No.610 of 2017 is one filed by the petitioner/ wife seeking an order to transfer O.P.No.59 of 2017 on the file of the Family Court, Tirur to the Family Court, Kozhikode. The said original petition is one filed by the first respondent/husband and his mother, who is arrayed as the second respondent herein, seeking return of 25 sovereigns of gold ornaments or its value of Tr.P.C Nos.508, 609 & 610 of 2017 2 Rs.5,45,000/- from the petitioner/wife and her cousins, who are arrayed as the third and fourth respondents herein. 4. Heard the learned counsel for the petitioner/wife and also the learned counsel for the respondent/husband in Tr.P.(C) No.508 of 2017,(who is arrayed as the first respondent in Tr.P.(C) Nos.609 of 2017 and 610 of 2017), who has also represented his mother, who is arrayed as the second respondent in Tr.P.(C)No.610 of 2017. 5. The common issue that arises for consideration in these transfer petitions is as to whether the petitioner/wife is entitled for an order to transfer O.P.(G.W.)No.83 of 2017, O.P.No.73 of 2017 and O.P.No.59 of 2017 now pending before the Family Court, Tirur to the Family Court, Kozhikode. 6. Though the learned counsel on both sides advanced arguments touching the merits of the cases, this Court refrains from making any observations on the merits, to avoid prejudice to either side during the trial before the Family Court. 7. In **Sumita Singh v. Kumar Sanjay [(2001) 10 SCC 41]** the Apex Court held that in matrimonial proceedings filed by the husband against the wife, the convenience of the wife must be looked into. The said position was reiterated in **Rajani Kishor Pardeshi v. Kishore Babulal Pardeshi [(2005) 12 SCC 237]** by Tr.P.C Nos.508, 609 & 610 of 2017 3 holding that in matrimonial disputes, the convenience of the wife is to be preferred over the convenience of the husband. On noticing that the leniency shown by the court is being misused by women, the Apex Court in **Anindita Das v. Srijit Das [(2006) 9 SCC 197]** held that, it is necessary to consider each petition on merits. 8. According to the petitioner/wife, she is presently residing at Mukkam in Kozhikode District along with youngest son 'Asadul Hind Fatah Ali Tipu', who is studying in a school at Mukkam. On 22.7.2016, the petitioner got temporary employment as Unani Medical Officer at NHM Ayush (Unani) Dispensary, Karassery near Mukkam and she has been residing at the address shown in the Transfer Petitions, i.e., Muringapurai, Mukkam, Kumaranelloor, Kozhikode along with her minor child. Her temporary employment was terminated on 30.6.2017, when a permanent hand joined duty. But, the petitioner continued her residence at Mukkam as her minor child is studying in the First Standard at Government L.P. School, Anayamkunnu, Mukkam. After termination, the petitioner has been practicing as Unani Doctor at Mukkam. 9. Though the respondent/husband has filed a detailed counter affidavit dated 3.8.2017 in Tr.P.(C)No.508 of 2017 he has not denied the specific case of the petitioner/wife in paragraph 1 of that transfer petition that, the minor child 'Asadul Hind Fatah Ali Tr.P.C Nos.508, 609 & 610 of 2017 4 Tipu' is studying in First Standard at Government L.P. School, Anayamkunnu, Mukkam. For the first time, the respondent/husband denied the said case of the petitioner/wife by filing an additional counter affidavit dated 4.10.2017. The petitioner/wife has filed a reply affidavit dated 5.10.2017 producing therewith as Annexure II, a true copy of the receipt dated 1.6.2017 issued by the Headmistress, Government L.P. School, Anayamkunnu, Mukkam for Rs.100/- received towards P.T.A. Fund. In addition to this, along with the reply affidavit dated 23.10.2017 filed by the petitioner/wife in Tr.P.(C)No.609 of 2017 a true copy of certificate dated 16.10.2017 issued by the Headmistress, Government L.P. School, Anayamkunnu has been produced as Annexure II, wherein it has been certified that 'Asadul Hind Fatah Ali Tipu' (Admission No.9236) is studying in that school from June 2017. 10. The fact that the petitioner/wife was working as Unani Medical Officer at NHM Ayush (Unani) Dispensary, Karassery, Mukkam as on 31.1.2017, the date of filing of O.P.(G.W.)No.83 of 2017, is admitted in the said original petition. The said fact is also admitted in O.P.Nos.59 of 2017 and 73 of 2017 as well. Going by the averments in O.P.(G.W.)No.83 of 2017, the petitioner/wife is residing near the Dispensary situated at Anayamkunnu in Karassery, in a quarters taken on rent. However, the respondent/ Tr.P.C Nos.508, 609 & 610 of 2017 5 husband would contend that she stays there alone. The averments in the said original petition would also show that Anayamkunnu is nearly 60 Kms away from her parental home at Tirur. 11. The subject matter of O.P.(G.W.)No.83 of 2017 is the custody the minor child 'Asadul Hind Fatah Ali Tipu', the youngest child born out of the wedlock. The pleadings and materials on record would show that the parties are at loggerheads. The fight between the petitioner/wife, who is a Unani Doctor, and the respondent/husband, who is a practicing Lawyer at Tirur, for custody of the minor child has gone to the extent of ordering production of the said child before Police Station, for the purpose of handing over interim custody to the other side. 12. In **Nil Ratan Kundu v. Abhijit Kundu [(2008) 9 SCC 413]** the Apex Court dealing with the principles governing the custody of children, held that a child is not “property” or “commodity” and that the issues relating to custody of minors and tender aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. Paragraph 58 of the said decision reads thus; "58. Though this Court in **Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840]** held that children are not mere chattels nor toys. The Trial Court directed handing over custody of Antariksh 'immediately' by removing him from Tr.P.C Nos.508, 609 & 610 of 2017 6 the custody of his maternal grandparents. Similarly, the High Court, which had stayed the order of the Trial Court during the pendency of appeal, ordered handing over of Antariksh to his father within twenty four hours positively. We may only state that a child is not "property" or "commodity". To repeat, issues relating to custody of minors and tender aged children have to be handled with love, affection, sentiments and by applying human touch to the problem." 13. In a case for custody of minor children, the paramount consideration of the court exercising 'parens patriae' jurisdiction shall be the welfare and well being of the children and not the rights of their parents who are at loggerheads with each other. The court, while dealing with the such questions, is neither bound by statutes nor by strict rules of evidence or procedures, nor by precedents. 14. The learned counsel for the respondent/husband would point out that, the distance between Mukkam and Kozhikode is nearly 30 Kms. with a traveling time of 1 hour. On the other hand, the distance between Mukkam and Tirur is nearly 60 Kms. with a traveling time of 1½ hours. Then the learned counsel for the petitioner/wife would submit that, in order to reach Triur the petitioner has to catch more than one bus and that, the traveling time required is much more. The learned counsel would also point out that, the respondent/husband has defaulted payment of maintenance at the rate of Rs.10,000/- to the petitioner/wife and Tr.P.C Nos.508, 609 & 610 of 2017 7 the minor child, despite the order of the Family Court dated 17.9.2016 in M.C.No.115 of 2015. Then the learned counsel for the respondent/husband would submit that the said order is already under challenge in an R.P.(F.C.) filed before this Court. 15. As already noticed, the fight between the petitioner/wife and the respondent/husband for custody of 'Asadul Hind Fatah Ali Tipu', the youngest child born out of the wedlock, has gone to the extent of ordering production of the said child before Police Station, for the purpose of handing over interim custody to the other side. In the counter affidavit filed in Tr.P.(C)No.508 of 2017, the respondent/husband has not denied the specific case of the petitioner/wife that the said child is studying in First Standard at Government L.P. School, Anayamkunnu, Mukkam. The documents produced by the petitioner/wife along with her reply affidavits, i.e., the receipt dated 1.6.2017 and also the certificate dated 16.10.2017 issued by the Headmistress, Government L.P. School, Anayamkunnu, Mukkam would show that the said child is studying in that school from June, 2017. The pendency of O.P.(G.W.)No.382 of 2017 filed by the petitioner/wife before the Family Court, Tirur seeking custody of the elder children, who are admittedly residing with the respondent/husband at Tirur, would not disentitle her from seeking transfer of O.P.(G.W.)No.83 of 2017 from the Family Court, Tr.P.C Nos.508, 609 & 610 of 2017 8 Tirur to the Family Court, Kozhikode. 16. Considering the facts and circumstances of the case, in the light of the decisions of the Apex Court referred to _supra_ , this Court finds that the petitioner has made out a case for transfer of O.P.(G.W.)No.83 of 2017, O.P.No.73 of 2017 and O.P.No.59 of 2017 pending before the Family Court, Tirur to the Family Court, Kozhikode. 17. Accordingly, O.P.(G.W.)No.83 of 2017, O.P.No.73 of 2017 and O.P.No.59 of 2017 pending before the Family Court, Tirur are withdrawn and transferred to the Family Court, Kozhikode. 18. The Family Court, Tirur is directed to transmit the records to the Family Court, Kozhikode. The Registry is directed to communicate a copy of this order to both the courts immediately. 19. The petitioner/wife and the respondent/husband shall appear before the Family Court, Kozhikode on **27.11.2017** . The Family Court shall issue notice to others, if they are not present before the court on that date. These Transfer petitions are disposed of as above. All pending interlocutory applications are closed. ## Sd/- **ANIL K. NARENDRAN, JUDGE** rmm/3/11/2017 // True Copy // P.A. To Judge