Dismissed

Noushad Flourish v. Akhila

Kerala HC8 Aug 2023Tr.P(Crl.)/37/2023

Case brief

AI extract

What is this about?

This transfer petition sought to move a family law case from the Thalassery court to the Vadakara court alleging bias. The High Court dismissed the petition, holding that allegations against the former judge were not determinative for the current judge.

What did the court decide?

The plea for transferring M.C. No. 236 of 2021 from Family Court, Thalassery to Family Court, Vadakara is rejected.

Noushad Flourish Vs Akhila — Kerala HC (2023) — LawSathi Research

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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 A. BADHARUDEEN

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TUESDAY, THE 8^TH DAY OF AUGUST 2023 / 17TH SRAVANA, 1945

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TR.P(CRL.) NO. 37 OF 2023

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MC NO. 236/2021 OF FAMILY COURT, THALASSERY

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PETITIONER/PETITIONER IN MC 236/2021 & RESPONDENT IN MC NO. 106/2019:

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NOUSHAD FLOURISH AGED 46 YEARS S/O MOHIYUDDIN FLOURISH HOUSE NEAR MEPPAYUR HIGHER SECONDARY SCHOOL MEPPAYUR POST, KOZHIKODE DIST, PIN – 673 524. BY ADVS. SHAIJAN JOSEPH VARGHESE MUNDACKAL SURUMI SHAKEEL

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RESPONDENTS/RESPONDENTS IN MC 236/2021 & PETITIONERS IN MC NO.

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106/2019:

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1 AKHILA AGED 37 YEARS, D/O RAZIK E.V KALIMA HOUSE PERINGADI POST, NEW MAHE KANNUR DIST, PIN – 673 312. 2 LAMAR MOIDEEN AGED 12 YEARS S/O NOUSHAD FLOURISH KALIMA HOUSE, PERINGADI POST,NEWMAHE KANNUR DIST, PIN – 673 312. BY ADVS. ASAF ALI T LALIZA.T.Y.(K/1427/2002)

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THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Tr. P.(Crl.) No. 37/2023 : 2 :

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A. BADHARUDEEN, J.

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--------------------------------------------------------Tr. P.(Crl) No. 37 of 2023

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Dated this the 7^th day of August, 2023.

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ORDER

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This petition is filed under Section 407 Cr.P.C and the prayer in

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this petition is to transfer M.C. No. 236 of 2021 pending before the

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Family Court, Thalassery to Family Court, Vadakara.

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Heard the learned counsel for the petitioner as well as the learned counsel for the respondents.

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The learned counsel for the petitioner advanced arguments reiterating the grounds stated in the Transfer Petition. The grounds upon which the transfer are sought for are as follows:

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“A) The proceedings of the Hon‟ble Family Court, Thalasseri is highly prejudiced and biased which is evident from the fact that the Hon‟ble Family Court pronounced orders without hearing the petitioner.

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B) The Hon‟ble Family Court, Thalasseri ought to have followed the natural justice principle in deciding the contested matters but it deliberately failed in doing so.

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C) The Hon‟ble Family Court pronounced the order arbitrarily and was completely partial which is evident from the orders it delivered. D) The Hon‟ble Family Court, Thalasseri has infringed the principles enshrined in the Constitution of India. The Hon‟ble Family Court violated Article 14, 19(a)and 21 of the Constitution of India.

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Tr. P.(Crl.) No. 37/2023

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: 3 :

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E) The petitioner will not get justice until all the casesare transferred from the Hon‟ble Family Court, Thalasseri to the hon‟ble Family Court, Vadakara.

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F) The Family Court, Thalasseri is roughly 8kms away from respondent‟s home and the Family Court, Vadakara is roughly 12kms away from respondent‟s home, it is a difference of roughly 4 kms. Therefore, the distance will not cause any inconvenience to the respondent in travelling to the Family Court, Vadakara.

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G) The petitioner herein faces extreme hardship to take part in the proceedings before the Family Court, Thalasseri because the concerned court is deliberately ignoring the concerns and grievances of the petitioner in order to safeguard the interests of the respondent.

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H) This Hon‟ble Court already stayed O.P 367/2019 and O.P 389/2019 in Annexure – A6.

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I) The concerned Family Court displayed favoritism beyond the expectations of the respondent.

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The learned counsel for the respondents has placed before this Court, copies of the order dated 31.05.2023 in Tr.P.C No. 835 of

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2022 and also the Division Bench judgment in Tr. Appeal No. 9 of 2023, filed by the petitioner herein. In Tr.P.C No. 835 of 2022, the petitioner sought transfer of O.P. Nos. 367 and 389 of 2019 pending before the Family Court Thalassery to Family Court, Vadakara raising allegations of bias and prejudice against the Family Court Judge, and

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the Transfer Petition was dismissed holding that the Judge against whom such bias was alleged had already retired and a new Judge

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Tr. P.(Crl.) No. 37/2023 : 4 :

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joined. The Division Bench of this Court, as per judgment dated 03.08.2023 in Tr. Appeal No.9 of 2023, dismissed the appeal confirming the findings of the learned single Judge.

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It is an admitted fact that the present Judge of the Family Court, Thalassery is not the Judge against whom bias was alleged. Therefore, the transfer sought merely alleging bias against the former Judge cannot be considered. In that view of the matter, this petition fails and accordingly, it is dismissed.

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sd/-

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A. BADHARUDEEN, JUDGE

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Tr. P.(Crl.) No. 37/2023 : 5 :

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APPENDIX OF TR.P(CRL.) 37/2023

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PETITIONER’S ANNEXURES:

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Annexure A1	TRUE COPY OF OP NO.292/2019 FILED BY THE 1ST RESPONDENT DATED 29.3.2019 BEFORE FAMILY COURT, THALASSERY.
Annexure A1(a)	TRUE COPY OF MC NO.106/2019 FILED BY THE 1ST RESPONDENT DATED 29.3.2019 BEFORE FAMILY COURT, THALASSERY.
Annexure A2	TRUE COPY OF THE COMMON JUDGMENT DATED 31/12/2019 IN OP NO.292/2019 AND MC NO.106/2019 OF FAMILY COURT, THALASSERY.
Annexure A3	TRUE COPY OF M.C 236/2021 FILED BY THE PETITIONER DATED 22.3.2021 BEFORE FAMILY COURT, THALASSERY.
Annexure A4	TRUE COPY OF THE CMP NO. 546/2021 IN M.C 106/2019 FILED BY THE RESPONDENTS BEFORE FAMILY COURT, THALASSERY.
Annexure A4(a)	TRUE COPY OF THE CMP NO. 705/2020 IN M.C 106/2019 FILED BY THE RESPONDENTS BEFORE FAMILY COURT, THALASSERY.
Annexure A4(b)	TRUE COPY OF THE CMP NO. 106/2020 IN M.C 106/2019 FILED BY THE RESPONDENTS BEFORE FAMILY COURT, THALASSERY.
Annexure A4(c)	TRUE COPY OF THE CMP NO. 408/2020 IN M.C 106/2019 FILED BY THE RESPONDENTS BEFORE FAMILY COURT, THALASSERY.
Annexure A4(d)	TRUE COPY OF THE CMP NO. 75/2022 IN M.C 106/2019 FILED BY THE RESPONDENTS BEFORE FAMILY COURT, THALASSERY.
Annexure A4(e)	TRUE COPY OF THE CMP NO. 367/2022 IN M.C 106/2019 FILED BY THE RESPONDENTS BEFORE FAMILY COURT, THALASSERY.
Annexure A5	TRUE COPY OF TR.P(C) 835/2022 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT.
Annexure A6	TRUE COPY OF THE ORDER DATED 30.12.2022 IN I.A 1/2022 AND I.A 2/2022 IN TR.P(C) 835/2022 OF THIS HON'BLE COURT.

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RESPONDENTS’ EXHIBITS: NIL

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True Copy

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PS To Judge.

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Noushad Flourish v. Akhila

Case brief

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Noushad Flourish v. Akhila

Case brief

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