Allowed

Nimshida, v. Afzal

Kerala HC28 Nov 2022Tr.P(C)/732/2021

Case brief

AI extract

What is this about?

Petitioners sought transfer of maintenance and custody petitions from Family Court, Tirur to Ernakulam citing father's relocation, loss of home, and inability to travel due to financial constraints. Court allowed transfer considering interest of justice and child's schooling in Ernakulam.

What did the court decide?

O.P. Nos. 570 of 2018 and 116 of 2019 transferred to Family Court, Ernakulam with direction to transmit records.

Nimshida, Vs Afzal — Child Custody and Guardianship | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944

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TR.P(C) NO. 725 OF 2021

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AGAINST THE ORDER/JUDGMENT IN O.P.NO.570/2018 OF FAMILY COURT,

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TIRUR

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PETITIONER :-

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NIMSHIDA

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AGED 27 YEARS, D/O. ISMAIL,
KOROTHIL HOUSE, PULINCHODE, MANNAROD,
BP ANGADI P.O, TIRUR, MALAPPURAM, PIN - 676102,
PRESENTLY RESIDING AT 32/302A, MAVUMMOOTTIL HOUSE, AKG
ROAD, ELAVUNKAL LANE, EDAPPALLY TOLL, ERNAKULAM
DISTRICT - 682024.

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BY ADVS.
G.P.SHINOD
GOVIND PADMANAABHAN
AJIT G ANJARLEKAR
ATUL MATHEWS

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RESPONDENT :-

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AFZAL

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AGED 32 YEARS
S/O. SULAIMAN, PALLIPPATT HOUSE, SANTHI NAGAR,
NIRAMARUTHOOR P.O, TIRUR, MALAPPURAM, PIN - 676109.

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BY ADV P.T.SHEEJISH

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THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28.11.2022, ALONG WITH Tr.P(C).732/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

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Tr.P.(C.) NO s . 725& 732 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 28TH DAY OF NOVEMBER 2022 /7TH AGRAHAYANA, 1944

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TR.P(C) NO. 732 OF 2021

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AGAINST THE ORDER/JUDGMENT IN O.P.NO.116/2019 OF FAMILY

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COURT, TIRUR

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PETITIONERS :-

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1NIMSHIDA,

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AGED 27 YEARS
D/O. ISMAL KOROTHIL HOUSE, PULINCHODE, MANNAROD,
BP ANGADI P.O., TIRUR, MALAPPURAM 676 102,
PRESENTLY RESIDING AT 32/302A, MAVUMMOOTTIL
HOUSE, AKG ROAD , ELAVUNKAL LANE, EDAPPALLY
TOLL, ERNAKULAM DISTRICT 682 024.

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2AFRIN,
AGED 6 YEARS
S/O. NIMSHIDA,
KOROTHIL HOUSE, PULINCHODE, MANNAROD, BP ANGADI
P.O., TIRUR, MALAPPURAM 676 102,
PRESENTLY RESIDING AT 32/302A, MAVUMMOOTTIL
HOUSE, AKG ROAD, ELAVUNKAL LANE, EDAPPALLY TOLL,
ERNAKULAM DISTRICT 682 024, REPRESENTED BY HIS
MOTHER AND NATURAL GUARDIAN, NIMSHIDA.

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BY ADVS.
G.P.SHINOD
GOVIND PADMANAABHAN
AJIT G ANJARLEKAR
ATUL MATHEWS

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RESPONDENTS :-

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1AFZAL,
AGED 32 YEARS
S/O. SULAIMAN,
PALLIPPATT HOUSE, SANTHI NAGAR, NIRAMARUTHOOR

¶33

Tr.P.(C.) NO s . 725 & 732 OF 2021

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3

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P.O., TIRUR, MALAPPURAM 676 109.

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2 SULAIMAN, AGED 53 YEARS

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S/O. MUHAMMED, PALLIPPATT HOUSE, SANTHI NAGAR,
NIRAMARUTHOOR P.O., TIRUR, MALAPPURAM 676 109.

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3 FATHIMA, AGED 45 YEARS

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W/O. SULAIMAN, PALLIPPATT HOUSE, SANTHI NAGAR,
NIRAMARUTHOOR P.O., TIRUR, MALAPPURAM 676 109.

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BY ADV P.T.SHEEJISH

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THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.11.2022, ALONG WITH Tr.P(C).725/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶42

Tr.P.(C.) NO s . 725& 732 OF 2021

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ORDER

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Dated this the 28^th day of November, 2022

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These petitions are filed under Section 24 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking to transfer O.P.Nos.570 of 2018 and 116 of 2019 pending before Family Court, Tirur to Family Court, Ernakulam. The petitioners are the wife and the child of the respondent and the petitioners in the Original Petitions sought to be transferred.

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The grievance of the petitioner was that she is residing with her father and the latter has sold the residential house at Tirur where he was staying, during November 2020. According to her prior to the sale of the house itself the petitioner and her family members had shifted stay from Tirur to Ernakulam. Petitioner could not secure a job despite attempts made to obtain one and therefore is living at the mercy of her father. She has no means to meet the expenses for travelling upto Family Court, Tirur frequently for attending the cases pending there. Therefore, the petitions on hand are filed seeking transfer of the Original Petitions filed by her and pending on the files of Family Cout, Tirur to Family Court, Ernakulam.

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Tr.P.(C.) NO s . 725 & 732 OF 2021

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5

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The learned counsel for the respondent opposes the

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application stating that as per the claim of the petitioner, she is now residing at Ernakulam in a house taken on rent by her father. According to him, if the prayer of the petitioner to transfer the cases from Tirur to Ernakulam is allowed, on getting shifted further to some other house, the petitioner would repeat the same claim. The learned counsel contended that the Original Petitions if transferred to Family Court, Thrissur, would be convenient to both parties.

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This Court notices from the rent deed furnished that a house has been taken on rent at Ernakulam by the father of the petitioner for residence purpose. Petitioner being staying with her father was constrained to move to Ernakulam on account of the shifting of her father to Ernakulam alongwith the child. The child is also admitted in a school at Ernakulam. Evenif, the case is transferred to Family Court, Thrissur as urged by the learned counsel for the respondent, lack of means to facilitate the travel and lack of anyone to accompany her in the travel would follow and she would not be benefited. In the above scenario, the interest of justice demands the transfer of the Original Petitions sought by the petitioner. The petitions seeking transfer are only to be allowed.

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Tr.P.(C.) NO s . 725 & 732 OF 2021

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6

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In the result, both petitions are allowed. The O.P.Nos.570 of 2018 and 116 of 2019 are ordered to be transferred to Family Court, Ernakulam. The Family Court, Tirur shall transmit the entire records relating to both Original Petitions to Family Court, Ernakulam, so as to enable the transferee court to proceed with the cases and to dispose it of.

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It is submitted by the counsel for the petitioners that orders granting maintenance allowance and custody of the child were not yet complied with by the respective parties. In that event, Family Court, Ernakulam is directed to consider applications filed by either parties for getting the orders enforced without delay. Family Court, Ernakulam on getting the case records transmitted to the court, shall see that compliance was rendered by either parties in both the applications.

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Sd/-

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MARY JOSEPH JUDGE

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SMA

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Tr.P.(C.) NO s . 725& 732 OF 2021

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APPENDIX OF TR.P(C) 732/2021

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PETITIONER ANNEXURES :-

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`Annexure A`	`A TRUE` `FILED` `FAMILY`	`COPY OF O.P. NO. 116 OF 2019` `BY THE PETITIONERS BEFORE THE` `COURT, TIRUR.`
`Annexure B`	`A TRUE` `NO. 1`	`COPY OF I.A. NO. 261/2019 IN OP` `16 OF 2019 FILED BY THE`
	`PETITIO` `TIRUR.`	`NERS BEFORE THE FAMILY COURT,`
`Annexure C`	`A TRUE` `BY THE` `COURT,`	`COPY OF COUNTER AFFIDAVIT FILED` `RESPONDENTS BEFORE THE FAMILY` `TIRUR.`
`Annexure D`	`A TRUE` `THE RE` `NO. 116` `THE FAM`	`COPY OF CHIEF AFFIDAVIT FILED BY` `SPONDENT IN OP NO. 570/2018, OP` `/2019 AND MC NO. 53/2019 BEFORE` `ILY COURT TIRUR.`
`Annexure E`	`A TRUE` `03/10/2` `FATHER.`	`COPY OF RENTAL AGREEMENT DATED` `019 EXECUTED BY THE PETITIONERS`
`Annexure F`	`A TRUE` `16/09/2` `FATHER.`	`COPY OF RENTAL AGREEMENT DATED` `020 EXECUTED BY THE PETITIONERS`
`Annexure G`	`A TRUE` `THE PET`	`COPY OF CUSTOMER COPY ISSUED TO` `ITIONERS SISTER BY HP GAS.`

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Tr.P.(C.) NO s . 725& 732 OF 2021

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APPENDIX OF TR.P(C) 725/2021

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PETITIONER ANNEXURES :-

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`Annexure A`	`A TRUE COPY OF O.P NO. 570 OF 2018` `FILED BY THE RESPONDENT BEFORE THE` `FAMILY COURT, TIRUR.`
`Annexure B`	`A TRUE COPY OF IA NO. 1387/2018 IN OP` `NO. 570 OF 2018, FILED BY THE`
	`RESPONDENT BEFORE THE FAMILY COURT,` `TIRUR.`
`Annexure C`	`A TRUE COPY OF OBJECTION FILED BY THE` `PETITIONER IN IA NO. 1387/2018 IN OP N` `O. 570 OF 2018 BEFORE THE FAMILY COURT,` `TIRUR.`
`Annexure D`	`A TRUE COPY OF RELEVANT PART OF THE` `COUNTER AFFIDAVIT FILED BY THE`
	`PETITIONER BEFORE THE FAMILY COURT,` `TIRUR.`
`Annexure E`	`A TRUE COPY OF CHIEF AFFIDAVIT FILED BY` `THE RESPONDENT IN OP.NO. 570/2018, OP` `NO. 116/2019 AND MC NO. 53/2019 BEFORE` `THE FAMILY COURT, TIRUR.`
`Annexure F`	`A TRUE COPY OF RENTAL AGREEMENT DATED` `03.10.2019 EXECUTED BY THE PETITIONER'S` `FATHER.`
`Annexure G`	`A TRUE COPY OF RENTAL AGREEMENT DATED` `16.09.2020 EXECUTED BY THE PETITIONER'S` `FATHER.`
`Annexure H`	`A TRUE COPY OF CUSTOMER COPY ISSUED TO` `THE PETITIONER'S SISTER, BY HP GAS.`

Nimshida, v. Afzal

Case brief

What is this about?

What did the court decide?

Nimshida, v. Afzal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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