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2025 DIGILAW 1932 (KER)

Vishnu S v. Salabham Sunil

2025-07-10

K.NATARAJAN

body2025
ORDER : K. Natarajan, J. All the three cases filed by the petitioner husband for transferring OP (G & W)No.921/2021, OP No.854/2020 & OP (HMA)No.920/2021 pending on the file of Family Court, Chavara to Family Court, Ernakulam or any other Courts in Kerala. 2. Heard the arguments of the learned counsel for the petitioner and counsel for the respondents. 3. The case of the petitioners is that the petitioner husband filed OP (G & W) No.921/2021 for child custody before the Family Court, Ernakulam and another OP (HMA) No.920/2021 before the Family Court, Ernakulam for divorce and the respondent wife filed OP No.854/2020 on the file of Family Court, Chavara for recovery of money and gold ornaments and after filing the transfer petitions before the High Court, the OP (G & W) No.921/21 has been transferred from Family Court, Ernakulam to Family Court, Chavara to try along with OP No.854/2020. Further, the case of the parties that now the matter is came before the Family court, Chavara for evidence and at this stage, the petitioner husband filed these three petitions for transferting all the three cases to Family Court, Ernakulam or any other Courts except Family Court, Chavara. 4. The learned counsel for the petitioners contended that the Family Court, Chavara is prejudiced against the petitioner and not passing the orders on IAs filed by the petitioner and purposely make those applications becomes infructuous. Further, it is contended that the said applications filed by the petitioner seeking interim custody of the child during the summer vacation, which was filed in March 2025 but no order was passed. However, an order came to be passed by granting visitation rights to see the child at Family Court, Chavara in the family court premises by giving an alternative day to travel from Ernakulam to Chavara. Therefore, the petitioner forced to challenge the same before this Court and got set aside the order and obtained the interim custody of the child continuously for three days and even the Family Court commented the petitioner in an abusing way stating that he is a fraud. There are various applications filed before the Family Court, Chavara by the petitioner, but not passing any orders on it. There are various applications filed before the Family Court, Chavara by the petitioner, but not passing any orders on it. The Presiding Officer of the Family Court, Chavara has commented towards the petitioner, hence prayed for transferring the cases to some other courts, as he will not get any justice from the Family Court, Chavara. 5. Per contra, the learned counsel for respondent objected to the petitions contending that previously the petitioner filed Tr.P.C before this Court in OP No.110/21 which came to be dismissed and TrP.(C)No. 40/21 filed by the respondent wife, has been allowed. These two cases pending before the Family Court, Ernakulam have been withdrawn and transferred to Family Court, Chavara. This aspect has been suppressed by the petitioner in this petition and the petitioner counsel is not ready to cross examine the witness even though the witness is present and examination in chief evidence is completed. The counsel stated that he will not cross examine the witness therefore, the trial court closed the cross examination as nil. The very next day filed an application to recall the witness and simultaneously filed a petition for transfer of the cases from the Family court, Chavara. The petitioners are filing application after application, more than 24 applications filed to harass the respondent as well as obstructing the court for smooth functioning of the cases. Therefore, the petition shall not be allowed. Hence prayed for dismissal of the petition. 6. The learned counsel for the respondent also argued that as per Section 9 of the Guardian and Wards Act, the petitioner should be tried by the Court which is having jurisdiction where the child ordinarily resides. Such being the case, the child is at jurisdiction of Chavara Family Court therefore, G & W case cannot be transferred to any other court. Hence prayed for dismissing the petition. 7. The counsel for the petitioner’s reply has contended that the respondent is not residing in Kollam or within the jurisdiction of Family Court, Chavara she is residing in Hyderabad and cases are conducted by the PA holder. Therefore, there is no problem in transferring the cases. Hence, prayed for allowing the petition. 8. Having heard the arguments and perused the records. Therefore, there is no problem in transferring the cases. Hence, prayed for allowing the petition. 8. Having heard the arguments and perused the records. The point that arise for consideration are as follows:- i. Whether petitioner made out sufficient ground for transferring all these cases i.e. OP (G & W) No.921/21, OP 854/2020 OP HMA, 920/21 from Family Court, Chavara to Family Court, Ernakulam or any other Family Court? On perusal of the records, it is revealed that especially the petitioner husband filed two cases, G & W 921/21 before the Family court Ernakulam and another case for divorce OP (HMA) No.920/21 and the respondent filed OP No.854/2020 before the Family Court, Chavara. Both respondent and petitioner filed two transfer petitions before this court. OP Tr.P.C No.110/21 filed by the very same petitioner for transferring the 854/2020 pending on the file of Family Court Chavara to Family Court, Ernakulam. The respondent wife filed another Tr.P. (C)No.40/2021 for transferring two cases pending in Family Court Ernakulam filed by the petitioner husband to Family Court, Chavara. Considering the both cases, this Court passed the order, but dismissed the petition filed by the husband and allowed the petition filed by the respondent wife and transferred two cases pending in the file of Family Court, Ernakulam to Family Court, Chavara. The request of the petitioner transferring the case from Family Court, Chavara to Family Court, Ernakulam has already rejected by this Court. The said order has not been challenged before the Hon’ble Supreme Court, and it has attained finality. 9. However, now the petitioner grievance is not on the respondent but on the Presiding officer of the Family Court, Chavara. The main contention is that the petitioner filed so many IAs but the same was not heard by the Family Court, Chavara and made them to become infructuous. And as per the submission of the counsel for the respondent, the petitioner filed as much as 24 IAs as nothing but harassing the court instead of the respondent. On perusal of the filing of application after application in the petitions, it shows that filing the applications frequently for the same relief and different applications is nothing but dragging the proceedings and harassing the other side. On perusal of the filing of application after application in the petitions, it shows that filing the applications frequently for the same relief and different applications is nothing but dragging the proceedings and harassing the other side. If at all the petitioner wants interim custody of the child he has to file an application for seeking interim custody of the child and if he is not satisfied with the order then he can approach the appellate court i.e., High Court. Admittedly, the counsel for the petitioner commented the order of the Family Court, passed in IA 22/25 in OP G & W 921/21 dated 13.5.25 for having granted visitation right to the petitioner in an alternative date directing the petitioner to visit the chavara court to see the child. The same was a judicial order passed by the Family Court, which was challenged before the Division Bench of this Court. Where the Division Bench of this court set aside the order and modified the order of the Family Court, in OP (FC) 304/25 dated 26.05.2025. Therefore, once the order of the Family court is set aside and now the Division Bench of this Court granted relief to the petitioner. If at all the petitioner wants continuous interim custody during vacations he can file a comprehensive application for granting interim custody of child for the summer vacation, winter vacation and onam vacations. The applications have not filed by the petitioner, but, he is filing application after application even not allowing to file objection or hear the arguments and not waited for disposal of those IAs by the Family Court but, he has continuously filing application after application is nothing but harassing not only the respondent but also the Presiding officer of the Court. Of course, the order of the Family Court has been set aside by this court. 10. Such being the case, once again petitioner counsel cannot comment on the order of the Family Court once the HIgh Court is merged with the order of the Family Court. Of course, it is also submitted by the learned counsel for the petitioner that the respondent has not obeyed the order of the court and violated the order of the court. The application came to be filed for taking action against the respondent, where the trial court is not taking action against the respondent. Of course, it is also submitted by the learned counsel for the petitioner that the respondent has not obeyed the order of the court and violated the order of the court. The application came to be filed for taking action against the respondent, where the trial court is not taking action against the respondent. Merely, the trial court did not take any action against the respondent that itself is not a ground for transferring the case from the said court. That apart it is not the case of the petitioner that the Family Court, Chavara is flooded with cases. 11. Such being the cases, the court has looked into all the cases, not only cases of the petitioner and the respondent. The Judges of the court do not have any personal vengeance against the litigants. But the advocates shall not act according to their whims and fancies and tunes of the client by filing unnecessary applications before the court. Filing the unnecessary applications one after the other is nothing but attracts the contempt of court as held by the Hon’ble Supreme Court in recent case. However, it is submitted by the respondent counsel the matters now posted for evidence of the respondent wife as OP No.854/2020 is the lead case. The respondent is said to be filed an affidavit evidence. The petitioner earlier not chosen to cross examine the witness, subsequently filed an application for recalling the witness which came to be allowed. It is submitted that the case is posted for crossing the witness today i.e. 10.07.25. It appears that the counsel for the petitioner may not cross examine purposely in view of the filing of transfer petition. In a judgment passed by the Division Bench of this Court, where the interim custody of the child for the petitioner as directed the trial court to dispose of the matter as early as possible. It is seen from the dispute of the parties that there are three cases pending, one is for divorce filed by the petitioner another one is seeking child custody and another petition is filed by respondent for recovery of money and gold ornaments. If all the cases are already clubbed together for joint trial. 12. It is seen from the dispute of the parties that there are three cases pending, one is for divorce filed by the petitioner another one is seeking child custody and another petition is filed by respondent for recovery of money and gold ornaments. If all the cases are already clubbed together for joint trial. 12. Such being the case the petitioner should cross examine the PW1 and any other witnesses examined by on behave of the respondent wife and lead the evidence of the petitioner without confronting with the court and misbehaving before the court by the either litigant or an advocate appearing for the litigant. Forgetting the position of the advocate who is the officer of the court who is to assist the court, the litigants but should not quarrel with the court for seeking relief. On the other hand the presiding officer shall not confront with the advocates or the litigants and to avoid unnecessary comments on the litigants in the open court and pass the orders/dispose of the cases in accordance with law. 13. With these observations, I am of the view that it is not a fit case for transfer of all the three cases, as prayed by the petitioner. If such a prayer is allowed, it will lead to diminishing the faith on the court by the litigants/public. Therefore, in the interest of justice at the public at large these petition are deserved to be dismissed. 14. Accordingly, all the three transfer petitions are dismissed. i. The trial court is directed to dispose of three cases within six months from the date of receipt of the copy of the judgment. ii. Both the petitioner and respondent shall not unnecessarily move applications before the court which may lead to delay in disposal of the cases.