IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 Tr.P(C).No. 132 of 2009() ------------------------- OP NO.238/2009 of FAMILY COURT,KOZHIKODE .................... PETITIONER: -------------------- SHEREEFA BEEVI, AGED 52, W/O. LATE SAINULABDIN, PUNNALA VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. MR.R.SURAJ KUMAR RESPONDENT(S): --------------------------- 1. P.E. KAMMUTTY, AGED 70, S/O. P.E. KAMMUTTY, FAZEELA MANZIL, RAMANATTUKARA, VELIPRAM AMSOM, VELIPRAM DESOM, KOZHIKODE TALUK. 2. KHADEESA, AGED 60, W/O. P.E. KAMMUTTY, FAZEELA MANZIL, THOTTUNGAL.P.O, RAMANATTUKARA, KOLLAM DISTRICT. 3. P.E. MUHAMMED ABDUL BASHER, AGED 32, S/O. P.E. KAMMUTTY, FAZEELA MANZIL, THOTTUNGAL.P.O, RAMANATTUKARA, KOZHIKODE DISTRICT. 4. LALI SAIN, AGED 28, D/O. SHERIF BEEVI, VAYALIRAKKATHU VEEDU, PUNNALA VILLAGE, PUNNALA MURI, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV.MR.A.T.THOMAS R1 BY ADV.MR.T.RAMPRASAD UNNI R2 & R3 BY ADV.MR.J.R.PREM NAVAZ THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- Tr.P.(C).No.132 OF 2009 -------------------------- Dated this the 17th day of August 2009 ------------------------------------- O R D E R Petition for transfer is filed under Section 24 of the Code of Civil Procedure. Proceedings under the Guardian and Wards Act in relation to a minor aged two years pending on the file of the Family Court, Kozhicode is sought to be transferred to the Family Court, Kottarakara. Parents of the infant, 3rd and 4th respondents, are admittedly employed abroad. Custody of the child at present is with the petitioner , the maternal grand mother of the child. The first respondent, paternal grand father of the child has filed a petition as O.S 238/2009 before the Family Court, Kozhicode seeking the custody of the child, in which the 4th respondent, mother, and maternal grand Tr.P.(C).No.132 OF 2009 Page numbers mother, petitioner herein, are the respondents. Previously the 4th respondent, mother, with the petitioner / maternal grand mother, both of them together, had filed a petition before the Family Court, Kottarakara that too for the same relief. The petition filed by the mother and maternal grand mother before the Family Court, Kottarakara as O.P No. 524/2008, it is stated, has been dismissed for default and according to the petitioner, an application for restoring that petition has been moved and it is under consideration. In the present petition for transfer, maternal grand mother of the child seeks transfer of the petition filed by the first respondent / paternal grand father as O.P No. 238/2009 from the Family Court, Kozhicode to the Family Court, Kottarakara. Tr.P.(C).No.132 OF 2009 Page numbers 2. Notice of the application given, respondents 1 to 3 have entered appearance and filed a counter. I heard the counsel on both sides. The learned counsel for the petitioner / maternal grand mother, submits that the infant aged two years is presently under has custody at her residence within the jurisdiction of the Family Court, Kottarakara. It is the further case of the counsel that the ordinary place of residence of the infant comes within the jurisdiction of the above court. On the other hand, the learned counsel for the respondents 1 to 3 would submit that the custody of the child was handed over to the maternal grand mother as an interim arrangement by way of an agreement entered between the paternal grand father / the respondent and maternal grand mother / the petitioner in the transfer petition. But violating the terms of agreement the child was not handed over and hence the petition was filed Tr.P.(C).No.132 OF 2009 Page numbers before the Family Court, Kozhicode, submits the counsel for the respondents 1 to 3. After having heard the counsel on both sides at length and appreciating the facts and circumstances presented, I find, in any proceeding involving a minor the paramount interest of that minor has to be given consideration more than anything else. The infant involved in the present proceeding is aged two years and even on the the case canvassed by respondents 1 to 3 custody of the infant was handed over to the maternal grand mother by way of an interim arrangement. That would indicate that the child continues to be under the care of the maternal grand mother for more than nine months. In the above circumstance the question may also arise for consideration whether the child at this age could be taken away all of a sudden from the person who is nurturing and attending to that child for the last several months. Needless to say that Tr.P.(C).No.132 OF 2009 Page numbers will have a disastrous psychological impact on the child. Whatever be the wraaglings between the grand parents over the custody of the child the court is concerned mainly of the interest of the child. Where it is shown that the child is with the maternal grand mother for the last nine months I find, the interest of justice demand that O.P No. 238/2009 filed by the paternal grand father has to be transferred to the Family Court, Kottarakara from the Family Court, Kozhicode. In a proceeding under Guardian and Wards Act, the court may call for the production of the infant to see whether it is properly taken care of. That circumstance has also to be considered with reference to the ordinary residence of the child. Taking all those aspects, I order that O.P No. 238/2009 on the file of the Family Court, Kozhicode be transferred to the Family Court, Kottarakara. The Judge, Family Court, Kottarakara on receipt of the records shall Tr.P.(C).No.132 OF 2009 Page numbers give notice to the parties for appearance. Subject to the above directions, petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv