Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 22ND DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 TR.P(C) NO. 122 OF 2024 OP(HMA) NO.147 OF 2023 OF FAMILY COURT, PATHANAMTHITTA PETITIONER(S)/RESPONDENT: DEEPA.S. AGED 43 YEARS W/O SURESH.P. DILEEP BHAVANAM, EZHAMKULAM, NEDUMAN.P.O., ADOOR, PATHANAMTHITTA, PIN - 691556 BY ADVS. A.RAJASIMHAN VYKHARI.K.U RESPONDENT(S)/PETITIONER: SURESH.P. S/O PRABHAKARAN, SURYASREE HOUSE, VENCHEMPU.P.O., KOLLAM, PIN - 691333 BY ADV NIRMAL V NAIR THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2024, ALONG WITH Tr.P(C).116/2024, 117/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 22ND DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 TR.P(C) NO. 116 OF 2024 OP(GW) NO.148 OF 2023 OF FAMILY COURT, PATHANAMTHITTA PETITIONER(S)/RESPONDENT: DEEPA.S. AGED 43 YEARS W/O SURESH.P. DILEEP BHAVANAM, EZHAMKULAM, NEDUMAN.P.O., ADOOR, PATHANAMTHITTA, PIN - 691556 BY ADVS. A.RAJASIMHAN VYKHARI.K.U RESPONDENT(S)/PETITIONER: SURESH.P. S/O PRABHAKARAN, SURYASREE HOUSE, VENCHEMPU.P.O., KOLLAM, PIN - 691333 BY ADVS. NIRMAL V NAIR ENCIL K. SABU(K/771/2023) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2024, ALONG WITH Tr.P(C).122/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 22ND DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 TR.P(C) NO. 117 OF 2024 OP NO.117 OF 2023 OF FAMILY COURT, PUNALUR PETITIONER(S)/RESPONDENT: DEEPA.S. AGED 43 YEARS W/O SURESH.P. DILEEP BHAVANAM, EZHAMKULAM, NEDUMAN.P.O., ADOOR, PATHANAMTHITTA, PIN - 691556 BY ADVS. A.RAJASIMHAN VYKHARI.K.U RESPONDENT(S)/PETITIONER: SURESH.P. S/O PRABHAKARAN, SURYASREE HOUSE, VENCHEMPU.P.O., KOLLAM, PIN - 691333 BY ADVS. NIRMAL V NAIR NESILI NAZEER(K/003120/2023) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2024, ALONG WITH Tr.P(C).122/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.JAYACHANDRAN, J.
------------------------------------------------- ------------------------------------------------- Dated this the 22nd day of March, 2024
ORDER
The petitioner is the wife, who seeks transfer of three Original Petitions to the Family Court, Adoor. In Tr.P.(C.) No.116/2024, O.P.(G&W) No.148/2023 pending before the Family Court, Pathanamthitta is sought to be transferred to Family Court, Adoor. Similarly, in Tr.P.(C.) No.117/2024, O.P. No.117/2023 pending before the Family Court, Punalur is sought to be transferred to the Family Court, Adoor. Likewise, in Tr.P.(C.) No.122/2024, O.P.(HMA) No.147/2023, pending before the Family Court, Pathanamthitta is sought to be transferred to the Family Court, Adoor. As a matter of fact, O.P.(HMA) No.147/2023 [previously numbered as O.P.(HMA) No. 530/2020], as also,
O.P.(G&W) No.148/2023 [previously numbered as O.P. (G&W) No. 22/2021], both of the Family Court, Kottarakara were transferred to the Family Court, Pathanamthitta on the ground of the convenience of the petitioner/wife, as per Annexure-A2 order passed by this Court. Learned counsel for the petitioner/wife would now submit that, at the time when Annexure-A2
order was passed, Family Court, Adoor was not
established, which is the reason why the Original Petitions were sought to be transferred to the Family Court, Pathanamthitta. After the establishment of Family Courts at Adoor and Punalur, O.P. No.371/2020 has been transferred to the Family Court, Punalur suo moto for administrative reasons and has been renumbered as O.P. No.117/2023. According to the learned counsel, the Court which is most convenient to the petitioner/wife is the Family Court, Adoor. Therefore, all the above referred three Original Petitions are to be transferred to the Family Court, Adoor, is the
submission made. The convenience of the petitioner/wife is liable to be taken stock of while considering Transfer Petitions. It is the further contention that, insofar as, O.P.(G&W) is concerned, the place where the child ordinarily resides, is the Court having jurisdiction, which is also the Family Court, Adoor, to which transfer is sought for.
2. This application was seriously opposed by
the learned counsel for the respondent pointing out that the respondent/husband is residing at Kottarakkara and that it would be inconvenient for him to travel to Adoor to prosecute/defend the above referred proceedings. Learned counsel would submit that no serous hardship will be caused to the petitioner, since it would take fifteen minutes to travel to the Family Court, Adoor, while it would taken only thirty minutes to travel to the Family Court, Pathanamthitta.
3. Having heard the learned counsel appearing on both sides, this Court is of the opinion that the
interests of both parties will be served, O.P. No.117/2023 pending before the Family Court, Punalur is also transfered to the Family Court, Pathanamthitta, where the other two Original Petitions are pending consideration. As already indicated, the two Original Petitions referred above were transferred to the Family Court, Pathanamthitta from the Family Court, Kottarakara, as per the request made by the present petitioner, which culminated in Annexure-A2 order. Now, for the reason that a Family Court is established at Adoor and that it is more convenient to the petitioner, the matters are not liable to be again transferred as desired by the petitioner. It is one thing to say that the convenience of the petitioner is to be considered while fixing the forum for adjudication of matrimonial disputes. However, the said legal position was recognised and settled only in the context of the wife being put to the task of traversing substantial distance for the purpose of prosecuting/defending the
proceedings, which would cause serious inconvenience to the petitioner/wife. It is equally settled that it is not an absolute rule that the convenience of the wife alone need be considered while considering transfer motions in matrimonial matters. The following observation of the Hon'ble Supreme Court in Anindita Das v. Srijit Das [2006 KHC 1887] is apposite in the context: “3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by this Court. On an average at least 10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women.”
4. In the instant case, as already indicated, the
petitioner/wife sought for transfer to Pathanamthitta, which was allowed vide Annexure-A2. Now, if these matters are transferred to Adoor, the same will cause serious inconvenience to the respondent/husband, who is residing within the limits of the Family Court,
Kottarakara. Per contra, the same would not cause any serious hardship to the petitioner/wife, if the matters are considered before the Family Court, Pathanamthitta. This Court also notice that the present cause of action for filing these transfer petitions was the suo moto transfer of O.P. No.117/2023 pending before the Family Court, Kottarakkara to the Family Court, Punalur, pursuant to the establishment of a Family Court at Punalur.
5. Now, coming to the reason that the
jurisdiction, insofar as, O.P.(G&W) are concerned, is the place where child ordinarily resides, this Court is the opinion that the same is the jurisdiction prescribed for the purpose of filing the Original Petition and the said jurisdiction will not affect the power of this Court under Section 24 of the Code of Civil Procedure to transfer cases in appropriate cases for valid grounds. In the circumstances, the Tr.P.(C.) Nos.116 &
pending before the Family Court, Punalur is directed to be transferred to the Family Court, Pathanamthitta to be considered along with two other proceedings by and between the parties, which are pending before the transferee Court. The transferor Court shall transmit the entire records to the transferee Court, forthwith.
Sd/- C. JAYACHANDRAN JUDGE SKP/22-03 APPENDIX OF TR.P(C) 116/2024 PETITIONER’S ANNEXURES: ANNEXURE A1 TRUE COPY OF THE PETITION IN OP (GW) NO. ANNEXURE A2 TRUE COPY OF THE COMMON ORDER DATED 4-1-2023 TRP© NO. 269 OF 2022 AND 291 OF 2022 OF THIS HON'BLE COURT RESPONDENTS' ANNEXURES:NIL APPENDIX OF TR.P(C) 117/2024 PETITIONER’S ANNEXURES: ANNEXURE A1 TRUE COPY OF THE PETITION IN OP NO. 371/2020 EXCLUDING THE DOCUMENTS ANNEXURE A2 TRUE COPY OF THE ORDER IN TRP© NO. 269 OF 2022 AND 291 OF 2022 DATED 4-1-2023 OF THIS HON'BLE COURT RESPONDENTS' ANNEXURES:NIL APPENDIX OF TR.P(C) 122/2024 PETITIONER’S ANNEXURES: ANNEXURE A1 TRUE COPY OF THE PETITION IN OP (HMA) NO. ANNEXURE A2 TRUE COPY OF THE COMMON ORDER DATED 4-1-2023 IN TRP(C.) NO. 269 OF 2022 AND 291 OF 2022OF THIS HON'BLE COURT RESPONDENTS' ANNEXURES:NIL TRUE COPY P.A. TO JUDGE