IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 Tr.P(C).No. 85 of 2009() ------------------------ AGAINST THE ORDER IN OP.NO.79/2009 IN OP.76/2009 of FAMILY COURT,TRIVANDRUM .................... PETITIONER/RESPONDENT IN O.P.NO.76/09 ON THE FILE OF FAMILY COURT, THIRUVANANTHAPURAM. -------------------------------------------------------------------------------------- MIDHUN AMIR, S/O.MR. AMIR ALI, AGED 26, AL-AZHA, PALARIVATTOM, COCHIN - 682 026. BY ADVS. MR.T.K.RADHAKRISHNAN, SMT.K.L.SREEDEVI. RESPONDENT(S): PETITIONER IN O.P.NO.76/09 ON THE FILE OF FAMILY COURT, THIRUVANANTHAPURAM. ------------------------------------------------------------------------------------------ A. NAZIA SHERIF, D/O. AZIZ M. SHERIEF, AGED 26, RESIDING AT WHITE HOUSE, CHACKAL, THIRUVANANTHAPURAM. BY ADV. MR.P.A.AHAMMED THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.709/2009 IN Tr.P.C.NO.85/2009 DISMISSED 1/06/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Tr.P.(C ) No.85 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 1st June, 2009 ORDER The above petition has been filed for transfer of two matrimonial proceedings numbered as O.P.Nos.79/09 and 76/09 on the file of the Family Court, Trivandrum to the Family Court, Ernakulam. Petitioner is the husband and the respondent is the wife. Both the above petitions were filed by the wife. The first one, O.P.No.76/09, for dissolution of marriage and the other, O.P.No.79/09 for maintenance, recovery of articles and other reliefs. In O.P.No.76/09, petitioner herein, the husband remained ex parte and it is seen from a report filed by the Family Court Judge, Trivandrum that the O.P. was disposed passing a decree dissolving the marriage ex parte on 16.3.09. This court has passed an interim order on 16.3.09 staying the proceedings in O.P.Nos.76/09 and 79/09 in the present petition. Evidently, since the order of stay and the disposal were made on the same day, the stay order passed by this court could not have come to the notice of the learned Family Court Judge. However, in the second O.P., O.P.No.79/09, an I.A. moved by the petitioner wife was heard earlier, but, disposed by an order dated 6.4.09, after the communication of the stay order was Tr.P.C.No.85/09 - 2 - received by that court. The report of the Family Court Judge would show that copy of the stay order was produced before that court on 24.3.09, but, it was not brought to the notice of the Family Court Judge which resulted in passing of an order in I.A.No.185/09 pursuant to the stay order issued by this court. The Family Court Judge has sought directions in the matter how he has to proceed further in the matter. Needless to point out that the order passed in I.A.No.185/09 when the stay order was in force is liable to be reviewed. The learned Family Court Judge shall hear the I.A. afresh and pass appropriate orders. So far as the dismissal of O.P.No.76/09 on the date when the stay order was issued by this court, the stay order cannot have any significance as it was not communicated to the Family Court on that date. An ex parte decree had been passed against the petitioner-husband and it is for him to take appropriate steps in accordance with law for setting aside that decree. While considering that application, if any, moved by the petitioner/husband, the Family Court Judge shall also take note that he had been prosecuting an O.P. for transfer of the petition and on the date of disposal a stay order was passed by this court. Now with respect to the prayer made in the present petition for transfer of the two O.Ps. Tr.P.C.No.85/09 - 3 - to the Family Court, Ernakulam, after hearing the counsel on both sides and taking note of the facts and circumstances involved, it appears, prima facie that the wife is permanently settled at Trivandrum and the transfer of the cases to the Family Court, Ernakulam is likely to cause her severe hardship and injury. Petitioner has also not made out sufficient grounds for transfer of these two cases, one of which already stands disposed by the court and so much so, the petition now survives only in respect of O.P.No.79/09 which is pending before the Family Court, Trivandrum. For transfer of that case also, I find, there is no justifiable cause. Before disposing of the petition the lapse on the part of the Bench Clerk pointed out by the Family Court Judge in bringing to his notice the stay order passed by this court, copy of which was produced before that court by the respondent much earlier to the disposal of the interlocutory applications require to be taken serious note of. The Family Court Judge shall obtain an explanation from the concerned Bench Clerk and take appropriate action as demanded for and take such remedial steps to avoid reoccurrence of any such lapse. Any order issued or step taken in a proceedings in violation of the stay order issued by a superior forum brings to ridicule the Tr.P.C.No.85/09 - 4 - judicial system as a whole and it cannot be viewed as innocuous lapse. As the report of the Family Court Judge indicate that the orders in the interlocutory applications have been passed without having notice of the stay order produced before the court, I am satisfied that there was no wilful contempt of the stay order issued by this court. The Transfer Petition is dismissed subject to the observations made above. srd S.S. SATHEESACHANDRAN, JUDGE