Dismissed

Dr.Lakshmi v.Nair v. Subith

Kerala HC23 Aug 2016Tr.P(C)/140/2016

Case brief

AI extract

What is this about?

The High Court dismissed a transfer petition concerning custody of a minor child. The petitioner sought transfer due to apprehension against the Family Court Judge's impartiality, citing a complaint involving the child and alleged adverse remarks. The High Court relied on the Judge's report and ruled that interaction during mediation does not permit such apprehension without material basis.

What did the court decide?

The transfer petition (Civil) filed by the petitioner seeking transfer of the custody case is dismissed.

Dr.Lakshmi v.Nair Vs Subith — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938 Tr.P(C).No. 140 of 2016 ()

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(TO TRANSFER OP 332/2012 of FAMILY COURT, MUVATTUPUZHA)

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PETITIONER(S)/RESPONDENT:

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DR.LAKSHMI V.NAIR, AGED 29 YEARS, D/O. DR. R VASUDEVAN NAIR, GOPI NANDANAM HOUSE, V/312 A C T ROAD, PERUMBAVOOR, ERNAKULAM 683542

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BY ADVS.SRI.R.SANJITH SMT.LEKSHMI RAMAKRISHNAN SRI.G.SHRIKUMAR (SR.) SMT.C.S.SINDHU KRISHNAH

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RESPONDENT(S)/PETITIONER:

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SUBITH, AGED 37, S/O. SIVASANKARAN NAIR, KEEZHETHU HOUSE, MANNOOR KARA, AIRAPURAM VILLAGE.

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BY ADVS. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.SREEKUMAR (SR.) SRI.THOMAS P.KURUVILA SRI.VIPIN NARAYAN

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THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OKB

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Tr.P(C).No. 140 of 2016

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APPENDIX

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PETITIONER'S ANNEXURES:

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A1- TRUE COPY OF THE MEMORANDUM OF ORIGINAL PETITION OF THE FAMILY COURT, ERNAKULAM.

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A2- TRUE COPY OF THE COUNTER IN O.P.1957/2010 OF THE FAMILY COURT, ERNAKULAM.

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A3- TRUE COPY OF THE ORDER IN I.A.827/2013 IN O.P.332/2012 DT.19.10.2013

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A4TRUE COPY OF THE CERTIFICATE ISSUED BY DR.SHAJI CHERIAN DTD.11.2.2016

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A5TRUE COPY OF MEMORANDUM OF M.C.239/10 OF THE FAMILY COURT, ERNAKULAM.

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A6- TRUE COPY OF OBJECTION FILED BY THE RESPONDENT IN M.C.239/10 OF THE FAMILY COURT, ERNAKULAM.

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RESPONDENT'S ANNEXURES: NIL

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OKB

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// True copy //

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P.A. to Judge

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K.HARILAL, J.

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Tr.P.(C) No.140 of 2016

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Dated this the 23^rd day of August, 2016

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O R D E R

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~ ~ ~ ~ ~

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The petitioner is the wife of the respondent

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herein. Their marital relationship has become strained and culminated in legal proceedings before the Family Court, Muvattupuzha. The respondent filed O.P.No.332/2012 before the Family Court, Muvattupuzha seeking permanent custody of the minor child Sreehari aged 5 years. The court below has granted visitorial rights, to meet the child monthly once, to the respondent. The petitioner submits that on 4.2.2016 she received an intimation from the school authorities of the minor child that her minor son has spoken to some of his friends with

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respect to some porn videos and scenes. Accordingly, on the very same evening, the petitioner enquired the child and came to know that the respondent had forcefully made the child to watch such videos and clippings in his mobile phone

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Tr.P(C).140/16

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in the presence of one Mr.Saji and his paternal grandmother while the child was in the temporary custody of the respondent.

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It is the case of the petitioner that the respondent has some psychological disorder. Being worried by the stress and apprehension expressed by the child, the petitioner immediately approached the Family Court, Muvattupuzha, by filing I.A. No.192/2016, in O.P.No. 332/2012, seeking review of the order granting interim custody of the child to the respondent. Thereafter, on 20.2.2016 the learned Family Court Judge heard both parties and the child in his chambers and posted the case for hearing on 13.3.2016. The Family Court Judge, while the petitioner was in his chambers, without letting the petitioner to speak, commented in such a way that, “¨ çµØßW ÉùEßøßAáKÄí æÎÞJ¢ µUJøÎÞÃçÜïÞ. ¥ÕÇßAÞÜ µØíxÁß çµØí çµGçMÞZ ÎáÄW ÈßæK ¾ÞX çÈÞG¢ §Gá æÕºîÄÞÃí.åYou are the only one giving stress to the child, §Õßæ¿ÏßøáKá çÕ×¢ æµGÞæÄ §ùBß çÉÞ¿à ®æa ÎáXÉßW ÈßKá¢. ”

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The petitioner has lost her confidence in the

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Tr.P(C).140/16

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Family Court, Muvattupuzha and apprehends that she will not get an impartial and independent justice from the Family Court, Muvattupuzha. She believes that the Family Court Judge, Muvattupuzha will not appreciate her contentions with regard to the nasty and mean acts of the respondent, by showing obscene and porn videos, to her child of very tender age. By making such adverse remarks the Family Court Judge, Muvattupuzha has remarked about the merits of the case and the petitioner's cause thereby giving rise to a reasonable apprehension in the mind of the petitioner that she will not get justice from the Family Court, Muvattupuzha. Hence she prayed for an order transferring the aforesaid case to the Family Court, Ernakulam.

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Heard the learned counsel for the petitioner and the learned counsel for the respondent.

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This Court called for a report from the Family Court, Muvattupuzha, seeking comments on the allegation against the Family Court Judge. The Family Court Judge filed a report denying the said

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Tr.P(C).140/16

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allegation. According to him, no such incident was happened and the petitioner in the Transfer Petition never came to his chambers and he bona fide believes

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that such an allegation against him is made to get transfer of the original petition and interlocutory applications somehow from the said court to some other court for the reasons best known to the petitioner.

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Since mediation and conciliation exploring the possibilities of amicable settlement are made a part of adjudicatory process, in the matters relating to disputed custody of the child, it is obligatory on the part of the Family Courts to make such an endeavour, before deciding the case on merits. During the said process, sometimes Judges may also interact with the parents and child so as to persuade them to arrive at an amicable settlement, particularly, when interim custody of the child is in dispute. In such interaction, in the absence of the other party, the Judges may also point out some adverse factors against each party, to remind and

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Tr.P(C).140/16

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bring them to ground reality. But such observations or expressions can never be treated as their opinion or finding as to the merits of the case. This Court is

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sure that Family Court Judges will not be carried away by what they have experienced during the course of mediation or conciliation and while sitting in judgment, in case mediation fails. Where the mediation fails, the Family Court Judge will determine the matter in issue, in accordance with law and evidence only, notwithstanding what they felt during the course of interaction. Needless to say, the Family Court Judges are well experienced and well trained to stand in aloofness, while sitting in judgment. Therefore, I am of the view that the apprehension that she will not get fair and impartial trial before that Judge is unfounded and the same can never be a ground for transferring the case from that court.

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In the instant case, the Family Court Judge

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has reported that on 20.2.2016 both parties were present before the court. The child was also

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Tr.P(C).140/16

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produced. In the afternoon the Judge called the child to his chamber. When interacted, he had no complaint against his father, the petitioner in the original petition. The report of the interaction with the child in the chamber was also prepared by the Judge himself and a copy of the said report is appended to the report sent by him to this Court. The Judge has reported that he never called the petitioner and the respondent to his chamber and they also did not come to his chamber and talked anything about the case.

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As I have observed above, the apprehension that she will not get a fair trial before the Family Court, Muvattupuzha cannot be taken as a ground to transfer the case, in the absence of any material to persuade me to take a different view. Consequently, this Transfer Petition will stand dismissed.

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Sd/K.HARILAL, Judge.

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okb

Dr.Lakshmi v.Nair v. Subith

Case brief

What is this about?

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Dr.Lakshmi v.Nair v. Subith

Case brief

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