Kerala High Court
Sanju Thomas vs Aiden Thomas on 18 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:44615
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
TR.APPL. (CR) NO. 1 OF 2025
AGAINST THE JUDGMENT DATED 20.12.2024 IN Tr.P(Crl.) NO.123
OF 2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SANJU THOMAS
AGED 30 YEARS, S/O GEORGE THOMAS, BETHEL BHAVAN,
POOKOLATHUR, PULPATTA P O, MANJERI PERMANENTLY
RESIDING AT PILAKKAL, PAYYANAD P O, MANJERI
MALAPURAM DSITRICT, KERALA PIN: 676123 CURRENTLY
WORKING AND RESIDING AT 35, 2228 MARINA
RESIDENCE, BAHRAIN REP BY HIS POWER OF ATTORNEY
HOLDER NIYAS U, AGED 31 YEARS, S/O ABDUL SALAM U
RESIDING AT UZHUNNAN HOUSE, MANKADA VIA,
KADANNAMANNA P O, MALAPPUARAM DISTRICT, KERALA,
PIN - 679324
BY ADVS.
SRI.NABIL KHADER
SMT.O.A.NURIYA
SMT.RUKSANA SATHAR P.A.
SRI.MANU SRINATH
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Tr.Appeal (Crl) No.1 of 2025
-: 2 :-
RESPONDENT/RESPONDENT:
AIDEN THOMAS
AGED 4 YEARS, (MINOR), REP BY HIS MOTHER RESHMA
ABRAHAM, AGED 28 YEARS, D/O ABRAHAM, PALAKKATT
(H), EZHIPRAM, KADAYIRUPPU P O, AIKKARANAD NORTH
VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT,
PIN - 682311
BY ADVS.
SRI.K.K.DHEERENDRAKRISHNAN
SMT.N.P.ASHA
THIS TRANSFER APPEAL CRIMINAL HAVING COME UP FOR
ADMISSION ON 18.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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Tr.Appeal (Crl) No.1 of 2025
-: 3 :-
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
Transfer Appeal (Crl.) No.1 of 2025
-----------------------------------------------
Dated this the 18th day of June, 2025
JUDGMENT
P.B.Suresh Kumar, J.
The appellant who is the petitioner in Tr.P(Crl.)
No.123 of 2024 challenges in this appeal instituted under
Section 5(i) of the Kerala High Court Act, 1958, the order of the
learned Single Judge dismissing the transfer petition.
2. The respondent is the minor son of the
appellant. The estranged wife of the appellant instituted
M.C.No.52 of 2024 before the Family Court, Muvattupuzha,
invoking Section 125 of the Code of Criminal Procedure (the
Code), corresponding to Section 144 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS), claiming maintenance for the
respondent. The parents of the petitioner, in the meanwhile,
instituted a proceedings before the Family Court, Malappuram
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under the Guardians and Wards Act for the custody of the
respondent. The petitioner, in the circumstances preferred
Tr.P(Crl.) No.123 of 2024 before this Court seeking orders
transferring M.C.No.52 of 2024 pending before the Family
Court, Muvattupuzha to the files of the Family Court,
Malappuram. The learned Single Judge dismissed the transfer
petition taking the view that while considering transfer
petitions in family matters, the convenience of the wife has to
be given predominance. The petitioner is aggrieved by the said
decision of the learned Single Judge, and hence this appeal.
3. The records reveal that the transfer petition
was one instituted invoking Section 24 of the Code of Civil
Procedure (CPC) and it was numbered initially as Tr.P(C) No.765
of 2024. But, in the course of the proceedings, the Registry
converted the transfer petition, suo motu, as one instituted
under Section 447 of the BNSS and renumbered the same as
Tr.P(Crl) No.123 of 2024 and it is in exercise of the power
conferred under Section 447 of the BNSS that the impugned
order has been passed.
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4. When the appeal came up for admission before
this Court, the learned counsel for the respondent contended
that inasmuch as the transfer petition is one entertained under
Section 447 of the BNSS, the appeal is not maintainable. In
Babu v. Kunjumol Nandiyanathayil, 2017 SCC OnLine Ker 4440,
a Full Bench of this Court has held that no appeal would lie
under Section 5(i) of the Kerala High Court Act, 1958, against
an order passed by the Single Judge under Section 407 of the
Code. The learned counsel relied on the said decision in
support of his contention that the appeal is not maintainable.
5. Per contra, though the learned counsel for the
appellant conceded that if the transfer petition is treated as
one entertained under Section 447 of the BNSS, the dictum in
Babu squarely applies to the facts of the case, it was argued
that the transfer petition from which the appeal arises has to be
treated as one entertained under Section 24 of the CPC and
that, therefore, it cannot be said that the appeal is not
maintainable. In order to buttress this argument, the learned
counsel for the appellant submitted that a Family Court cannot
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be treated as a criminal court subordinate to the authority of
the High Court for the purpose of exercising the power under
Section 447 of the BNSS and it is on the assumption that a
Family Court is a criminal court subordinate to authority of the
High Court that the Registry converted, suo motu, the transfer
petition as one instituted under Section 447 of the BNSS.
6. The learned counsel for the respondent does
not dispute the fact that if the impugned order is treated as one
rendered under Section 24 of the CPC, the appeal is certainly
maintainable. His contention, however, is that the Family Court,
while dealing with an application under Section 144 of the
BNSS exercises the power of a First Class Magistrate, who
presides over a criminal court in terms of Section 6 of the
BNSS.
7. We have considered the arguments advanced
by the learned counsel for the parties on either side.
8. As noted, the very basis of the contention that
the power conferred on this Court under Section 447 of the
BNSS cannot be exercised in relation to a proceedings
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instituted under Section 144 of the BNSS is that the Family
Court, while dealing with an application under Section 447 of
the BNSS, cannot be treated as a criminal court. A Full Bench of
this Court has held in Sathyabhama v. Ramachandran, 1997
SCC OnLine Ker 292, on an analysis of the various provisions
contained in the Family Courts Act, 1984 that while dealing with
an application under Section 125 of the Code, inasmuch as the
procedure prescribed for the same under the Family Courts Act,
1984 is the procedure prescribed under the Code, the Family
Court can be considered only as a criminal court or at least as a
court acting as a criminal court. The relevant paragraphs of the
judgment of the Full Bench read thus:
"13. The statutory prescription that the provisions in the
Cr.P.C. shall apply to the proceedings under Section 7(2)(a) of
the Act would also indicate that Family Court while disposing
of the proceedings under Section 7(2)(a) can be considered
only as a criminal court or at least as a court acting as a
criminal court. At any rate, we are of the view that it may not
be legal or logical to treat the Family Court as a civil court
while exercising jurisdiction under Section 7(2)(a) of the Act.
The weighty observation of Beanmont C.J. in the decision
reported in Emperor v. Bhatu Sadu (AIR 1938 Bombay 225)
strongly relied upon by Shri Vijaya Bhanu is relevant and can
be usefully quoted in this connection:
"..........If the Court hearing the appeal is a Civil Court it
seems to me that its procedure must be governed by the
Civil Procedure Code, and if the Court holds that the
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procedure is governed by the Criminal Procedure Code,
that must be on the basis that the Court is acting as a
Criminal Court, and if it is acting as Criminal Court, I do
not see why the powers of revision should not be those
conferred by S. 439, Criminal P.C., and not those
conferred by S. 115, Civil P.C.............."
14. The learned Judge was considering the question whether
a Civil Court while disposing of an appeal under Section 476B
Cr.P.C. corresponding to Section 341 of the present Code, acts
as a Civil Court or as a Criminal Court and whether High Court
has jurisdiction to revise the judgment of the appellate court
under Section 439 Cr.P.C. The situation in this case is also
somewhat similar. As such we would in this case respectfully
adopt the reasoning of the learned Judge and would hold that
proceedings under Chapter IX Cr.P.C. before the Family Court
could be governed by the provisions of the Cr.P.C. only on the
basis that the court is acting as a Criminal Court. A Full Bench
of the Punjab High Court has also followed the reasoning of
Beaumont C.J., in the decision reported in Hakim Rai v. State
(AIR 1957 Punjab 134 (F.B.).
xxx xxx xxx
18. In the light of what is discussed above, we are of the view
that while exercising jurisdiction under Section 7(2)(a) of the
Act and disposing of applications filed under Chapter IX
Cr.P.C., the Family Court acts as a Criminal Court and not as a
Civil Court. In the circumstances, the view expressed by the
Division Bench in its order dated 10.7.1997 cannot be
accepted as correct. As such the revisions filed under Section
19(4) of the Act are liable to be treated as revisions filed
against the orders passed by a court acting as a criminal
court and not as a civil court. In this view, we would direct the
office to number the revisions as R.P. (Family Court)' liable to
be disposed of by a single judge under Section 3(8) of the
High Court Act as a proceeding of a criminal court."
The learned counsel for the appellant has no case that if the
Family Court is a criminal court while dealing with an
application under Section 144 of the BNSS corresponding to
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Section 125 of the Code, this Court cannot exercise the power
conferred under Section 447 of the BNSS to transfer such
proceedings from the files of one family court to the files of
another family court. Needless to say, the contention that the
power under Section 447 of the BNSS is not available for
transferring the proceedings under Section 144 of the BNSS, is
only to be rejected. If that be so, the appeal is not maintainable
and the same is dismissed as not maintainable.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
YKB
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APPENDIX
PETITIONER ANNEXURES
Annexure A3 LEGIBLE COPY OF ANNEXURE A3
