Nasiya v. Sabu A

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ## **`TR.P(C) NO. 279 OF 2021`** ## **`IN OP(GW)NO.1768/2019 OF FAMILY COURT, ATTINGAL`** ## **`PETITIONER/PETITIONER:`** ``` NASIYA, AGED 36 YEARS, D/O.SHERIFUDDIN, ARA VEETTIL, VAKKOM P.O., VAKKOM DESOM, VAKKOM VILLAGE, CHIRAYENKEEZHU, THIRUVANANTHAPURAM-695 102. ``` ``` BY ADVS.R.RAJKUMAR SRI.JAGADEESH LAKSHMAN SRI.RAHUL RAJ ``` ## **`RESPONDENT/1ST RESPONDENT:`** ``` SABU.A. S/O.ABDUL HAI, SHAFIZ MANZIL, MANANAKKU, PERUMKULAM P.O., PERUMKULAM DESOM, MANAMBUR VILLAGE, CHIRAYENKEEZHU, THIRUVANANTHAPURAM-695 102. ``` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.06.2022, ALONG WITH TR.P(CRL.).33/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:2:- ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ``` TR.P(CRL.) NO. 33 OF 2021 IN MC 495/2019 OF FAMILY COURT, ATTINGAL ``` ## **`PETITIONERS/PETITIONERS:`** ``` 1NASIYA, AGED 36 YEARS, D/O. SHERIFUDDIN, ARA VEETTIL, VAKKOM P.O., VAKKOM DESOM, VAKKOM VILLAGE, CHIRAYENKEEZHU TALUK, THIRUVANANTHAPURAM. 2MUHAMMED HAFIZ, AGED 17 YEARS, ARA VEETTIL, VAKKOM P.O., VAKKOM DESOM, VAKKOM VILLAGE, CHIRAYENKEEZHU TALUK, THIRUVANANTHAPURAM, REPRESENTED BY HIS MOTHER AND 1ST PETITIONER NASIYA. 3MUHAMMED BISMIN, AGED 14 YEARS, ARA VEETTIL, VAKKOM P.O., VAKKOM DESOM, VAKKOM VILLAGE, CHIRAYENKEEZHU TALUK, THIRUVANANTHAPURAM, REPRESENTED BY HIS MOTHER AND 1ST PETITIONER NASIYA. 4MUHAMMED MUHSIN, AGED 11 YEARS ARA VEETTIL, VAKKOM P.O., VAKKOM DESOM, VAKKOM VILLAGE, CHIRAYENKEEZHU TALUK, THIRUVANANTHAPURAM, REPRESENTED BY HIS MOTHER AND 1ST PETITIONER NASIYA. 5FATIMA SALMA, AGED 6 YEARS ARA VEETTIL, VAKKOM P.O., VAKKOM DESOM, VAKKOM ``` ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:3:- ``` ``` VILLAGE, CHIRAYENKEEZHU TALUK, THIRUVANANTHAPURAM, REPRESENTED BY HER MOTHER AND 1ST PETITIONER NASIYA. ``` ``` BY ADVS.K.R.RAJKUMAR SRI.JAGADEESH LAKSHMAN SRI.RAHUL RAJ ``` ## **`RESPONDENT/RESPONDENT:`** ``` SABU A S/O. ABDUL HAI, SHAFIZ MANZIL, MANANAKKU, PERUMKULAM P.O., PERUMKULAM DESOM, MANAMBUR VILLAGE, CHIRAYENKEEZHU, THIRUVANANTHAPURAM- 695102. ``` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.06.2022, ALONG WITH Tr.P(C).279/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:4:- ``` Dated this the 17[th] day of June,2022 ## **COMMON ORDER** As these transfer petitions are filed by the wife and children against the husband /father, they are being disposed of by this common order. 2. The petitioner – wife – has filed Tr.P(C) No.279/2021 and the petitioners – wife and children – have filed Tr.P.(Crl.) No.33/2021 [under Sections 24 of the Code of Civil Procedure, 1908 (in short, 'CPC') and 407 of the Code of Criminal Procedure, 1973, (in short, 'Cr.P.C.'), respectively], seeking to transfer O.P. (GW)No.1768/2019 and M.C.No.495/2019, respectively, from the Family Court, Attingal, to the Family Court, Thiruvananthapuram. The parties are, for the sake of convenience, referred to as per their status in Tr.P(Crl.)No.33/2021. 3. The petitioners' case in brief, in Tr.P(Crl.)No.33/2021 is that; the first petitioner is the ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:5:- ``` wife of the respondent. The petitioners 2 to 5 are the children born in the wedlock between the first petitioner and the respondent. Since the respondent has willfully refused to maintain the petitioners, they have filed M.C.No.495/2019 before the Family Court, Attingal. The first petitioner has also filed O.P. (GW)No.1768/2019 before the same court, seeking the custody of petitioners 2 to 4, who are in the illegal custody of the respondent. Now, the first petitioner is not in a mental frame of mind to live in her parental home at Chirayenkeezhu. She is living in Thiruvananthapuram along with her paternal aunt. She is undertoing treatment for depression, after her release from Judicial custody on account of false criminal case foisted against her by the respondent. The police are harassing her. The lawyers at Attingal have refused to defend her at the Family Court, Attingal. Presently, a NGO has volunteered to offer free legal aid to the first petitioner. The first petitioner ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:6:- ``` does not have means to travel from Thiruvananthapuram to Attingal to prosecute M.C.No.495/2019 and O.P.(GW)No.1768/2019 before the Family Court, Attingal. Hence, she seeks for the transfer of the above two cases to the Family Court, Thiruvananthapuram, which would be convenient for her and the children. Hence, the transfer petitions. 4. Heard; Sri.Rajkumar K.R., the learned counsel appearing for the petitioners and Sri.Latheesh Sebastian, the learned counsel appearing for the respondents. 5. The learned counsel appearing for the respondent fairly conceded that the respondent has no objection in the transfter petitions being allowed. 6. The law with respect of transfer of proceedings, particularly matrimonial disputes, is no longer res integra, in view of the categoric declaration of law by the Hon'ble Supreme Court in **Sumitha Sing V. Kumar Sanjay and another** [(2001)10 SCC ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:7:- ``` 41], **Mona Aresh Goel V. Aresh Satya Goel** [(2000) 9 SCC 255], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [AIR 2016 SC 3584], **Santhini V. Vijaya Venkatesh** [2017 (4) KLT 415 (SC)] **Valsal Nisha v. Rajesh Soman Nair** [2020 (8) KLR 475]. The Hon'ble Supreme Court has held that it is the convenience of the woman and children that has to be looked into, while ordering the transfer of a case from one Court to another. 7. In the light of the law laid down in the aforecited decisions, the uncontroverted pleadings and materials on record and the peculiar the facts and circumstances of the case, I am inclined to exercise the discretionary powers of this Court under Sections 24 of the C.P.C. and 407 of the Cr.P.C. and order the transfer of the M.C.No.495/2019 and O.P.(GW) No.1768/2019 to the Family Court, Thiruvananthapuram. In the result, the transfer petitions are allowed in ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:8:- ``` the following manner. - (i) Tr.P.(Crl.)No.33/2021 is allowed, by ordering the transfer of M.C.No.495/2019 from the Family Court, Attingal to the Family Court, Thiruvananthapuram. - (ii) Tr.P.(Crl.)No.279/2021 is allowed, by ordering the transfer of O.P. (GW)No.1768/2019 from the Family Court, Attingal279 to the Family Court, Thiruvananthapuram. - (iii) The parties would be at liberty to move the Family Court, Thiruvananthapuram, and seek for consolidation and joint trial of the proceedings between them. - (iv) The Registry shall forthwith forward a copy of this common order to the Family Court, Attingal, with instructions to transmit the records in M.C.No.495/2019 and O.P. (GW).No.1768/2019 to the Family Court, ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:9:- ``` Thiruvananthapuram. - (v) The Family Court, Thiruvananthapuram shall, immediately on receipt of the records in M.C.No.495/2019 and O.P. (GW).No.1768/2019, issue notice to the parties for their appearance. Sd/- ## **C.S.DIAS,JUDGE** DST/17.06.22 //True copy/ P.A.To Judge ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:10:- ``` ## **`APPENDIX OF TR.P(C) 279/2021`** ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF THE PETITION OP(GW) NO.1768/2019 PENDING BEFORE THE FAMILY COURT, ATTINGAL. ``` ``` Tr.P.(C)No.279/2021& Tr.P.(Crl.)No.33/2021 ``` ``` -:11:- ``` ## **`APPENDIX OF TR.P(CRL.) 33/2021`** ``` PETITIONER ANNEXURES ANNEXURE A 1TRUE COPY OF THE PETITION MC NO.495 OF 2019 PENDING BEFORE THE FAMILY COURT ATTINGAL DATED 23.11.2019. ```