Jameenudheen v. Khadeeja Abdul Karim

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945 TR.APPEAL(C) NO. 2 OF 2023** **AGAINST THE JUDGMENT DATED 09.02.2023 IN TR.P.(C) NO.554 OF 2022 OF THE HIGH COURT OF KERALA** ## **APPELLANT/RESPONDENT/PETITIONER:** ## **JAMEENUDHEEN,** **AGED 38 YEARS, S/O. S.V.M. YOUSAF ,BUSINESS, FLAT NO.5 -D, 6TH FLOOR, PHASE NO.2, SOUPARNIKA SHRIDHI APARTMENTS, NEAR ST. THOMAS SCHOOL, VATTAPPARA, MUKKOLA,THIRUVANANTHAPURAM, PIN- 695 028, NOW AT FLAT NO. SV-1 A, TRAVANCORE SUNROCK, MULLASSERY ANKARA, KARAKULAM, THIRUVANANTHAPURAM - 695 043.** **BY ADVS. JOHN JOSEPH(ROY) S.KRISHNANKUTTY** ## **RESPONDENT/PETITIONER/RESPONDENT:** ## **KHADEEJA ABDUL KARIM** **AGED 35 YEARS, D/O. ABDUL KARIM, KHADEEJA MANZIL,VADAKKEKARA P.O., N.PARUR, ERNAKULAM DISTRICT, PIN- 683 522.** **BY ADVS. RAJEE P MATHEWS VIJAY SANKAR V.H. AMRUTHA P S SRUTHY UNNIKRISHNAN** 2 Tr.Appeal (C) No.2 of 2023 **THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR FINAL HEARING ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Tr.Appeal (C) No.2 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an intra court appeal under Section 5 of the Kerala High Court Act, 1958 filed by the appellant challenging the judgment dated 09.02.2023 in Tr.P.(C) No.554 of 2022. 2. As per the order dated 07.03.2023 in I.A.No.1 of 2023 operation of the impugned order was stayed. Considering the nature of dispute involved in the case, this Court as per order dated 12.04.2023 directed both parties to appear before this Court along with the children on 13.04.2023. 3. On 13.04.2023 when the parties appeared before the Court, they were directed to appear before the Family Counselling Centre attached to the High Court Legal Services Committee. This Court after perusal of the report, which was placed on record by the Family Counsellor, allowed the appellant to deliver new clothes to the children at their residence at North Paravur. He was allowed day custody of the children at Thiruvananthapuram on 24.04.2023, 25.04.2023, 4 Tr.Appeal (C) No.2 of 2023 08.05.2023 and 09.05.2023 from 10.00 a.m. till 6.00 p.m. 4. Today, both parties appeared before this Court. From the submissions at the Bar, we find no possibility for a settlement of the dispute immediately. Therefore, we heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. The respondent filed Tr.P.(C) No.554 of 2022 on the ground that being a resident of North Paravur, which is 226 Kms. away from the Family Court, Thiruvannathapuram, her reaching that court is very hazardous for her. It was further contended that two other cases filed by her are pending before the court at Ernakulam, which were later transferred to the Family Court, North Paravur. 6. The appellant opposed the said request on the ground that the children in relation to whom O.P.(G&W) No.2124 of 2022 was filed are ordinary residents of Thiruvananthapuram, and therefore, that court alone has jurisdiction to consider the said original petition. In support of that contention, the appellant produced Annexures R1 to R7. 5 Tr.Appeal (C) No.2 of 2023 7. This Court, after considering the rival contentions, held that the transfer petition was liable to be allowed. The learned Single Judge also noticed that the respondent and two minor children were residing at Ernakulam and as such O.P. (G&W) No.2124 of 2022 was to be transferred to the Family Court, North Paravur. The learned single Judge placed reliance in that regard on the decisions reported in **Sumitha Sing V. Kumar Sanjay and another [2002 KHC 1889], Mona Aresh Goel V. Aresh Satya Goel [2000 KHC 1835], Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap [2016 KHC 6489], Santhini V. Vijaya Venkatesh [2017 (5) KHC 48]** and **N.C.V. Aishwarya vs. A.S. Saravana Karthik Sha [2022 (5) KHC 185]** . Another reason pointed out by the learned Single Judge for exercising discretion in favour of the transfer is that Annexures C and D cases filed by the respondent are pending before the Family Court, Ernakulam (since transferred to the Family Court, North Paravur), and therefore, consolidation of all the cases for the trial would be possible, if required. 6 Tr.Appeal (C) No.2 of 2023 8. Section 9 of the Guardian and Wards Act, 1890 is definies jurisdiction of the court where a matter relating custody of the child has to be considered. It says that an application in respect of the guardianship of the person of a minor shall lie to the court having jurisdiction at the place where the minor ordinarily resides. While the appellant contends that he along with the children are residing in Thiruvananthapuram, the respondent claims that the children are residing along with her in Ernakulam. The respondent further contended that the document relied on by the appellant to prove the place of residence of the children are documents came into being at the time when she also was residing at Thiruvanthapuram in the matrimonial company of the appellant. Thus, the question where the children are residing is in dispute. In such circumstances, the jurisdiction in the matter cannot be pinned down to the Family court at Thiruvananthapuram. That apart, this Court, in exercise of the powers under Section 24 of the Code, decided in the impugned order to transfer O.P.(G&W) No.2124 of 2022 to the Family Court, North Paravur. 7 Tr.Appeal (C) No.2 of 2023 9. In **Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust [(2005) 4 KLT 865]** a Full Bench of this Court held that, when an application for transfer or withdrawal of a suit from one court is made under Section 24 of the Code of Civil Procedure, the court has to adjudicate that matter regarding transfer or withdrawal after issuing notice to the parties interested and after giving an opportunity of hearing. An order passed after such an adjudication is certainly appealable under Section 5(i) of the Kerala High Court Act. The Full Bench held further that, even though an order passed at the instance of one party to the suit by the single Judge under Section 24 of the Code is appealable under Section 5(i) of the Kerala High Court Act, a word of caution is also necessary. When an appeal is filed under Section 5(i) of the Kerala High Court Act against the order passed under Section 24 of the Code of Civil Procedure by a learned Single Judge, the Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave or substantial injustice. 8 Tr.Appeal (C) No.2 of 2023 10. When the learned Single Judge, after considering all the relevant aspects, exercised discretion in favour of ordering transfer, interference with that order can be had only if there is fragrant violation of the settled principles of law. The appellant did not succeed to make out any such ground, and therefore, we are of the view that no interference is required to the impugned order. The appeal fails. The appeal is accordingly dismissed. Registrar (Judicial) is directed to keep the report of the Family Counsellor in safe custody. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 9 Tr.Appeal (C) No.2 of 2023 ## **APPENDIX OF TR.APPEAL(C) 2/2023** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE ONE OF THE MEDICAL REPORT OF MOHAMMED AHIYAN, THE 1ST CHILD OF THE RESPONDENT ISSUED BY DR. JAMEELA K. WARRIER DATED 06-12-2019 OF KERAL INSTITUTE OF MEDICAL SCIENCE, THRUVANANTHAPURAM** **Annexure A2 THE PROFORMA OF CASE RECORD FROM KIMS HOSPITAL OF THE MOTHER OF THE RESPONDENT**