Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 30TH DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 TR.P(C) NO. 177 OF 2021 AGAINST THE ORDER/JUDGMENT IN OP 980/2020 OF FAMILY COURT, KOTTAYAM PETITIONER/S: MANJUSHA T.R. AGED 35 YEARS D/O. RAJAPPAN, AGED 35 YEARS, THAMARASSERY HOUSE, NURSERYPADY, VETTILAPPARA P.O., CHALAKUDY, THRISSUR DISTRICT, PIN - 680 721. BY ADVS. K.V.BHADRA KUMARI BYJA E.G. RESPONDENT/S: SUMESH V. AGED 37 YEARS S/O. M.P. VEERAMANY ACHARY, AGED 37 YEARS, MUNDAKKAL HOUSE, KUDAMALOOR P.O., AYMANAM VILLAGE, KOTTAYAM DISTRICT, PIN - 686 017. BY ADVS. JINU JOSEPH ANU PHILIPOSE THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2022, ALONG WITH Tr.P(C).194/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 30TH DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 TR.P(C) NO. 194 OF 2021 AGAINST THE ORDER/JUDGMENT IN OPHMA 896/2020 OF FAMILY COURT, KOTTAYAM
PETITIONER/S: MANJUSHA T.R. AGED 35 YEARS D/O.RAJAPPAN, THAMARASSERY HOUSE, NURSERYPADY, VETTILAPPARA (P.O.), CHALAKUDY, THRISSUR DISTRICT PIN BY ADVS. K.V.BHADRA KUMARI BYJA E.G. RESPONDENT/S: SUMESH V. M.P.VEERAMANY ACHARY, AGED 37 YEARS, MUNDAKKAL HOUSE, KUDAMALOOR (P.O.), AYMANAM VILLAGE, KOTTAYAM DISTRICT, PIN 686 017 BY ADV JINU JOSEPH THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2022, ALONG WITH Tr.P(C).177/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
COMMON ORDER
The transfer petitions are filed by the petitioner/wife against the respondent/husband under Sec.24 of the Code of Civil Procedure, to transfer O.P.No.980/2020 and O.P.(HMA) No.896/2020 from the Family Court, Ettumanoor to the Family Court, Irinjalakuda.
2. The common case of the petitioner in both the
transfer petitions is that, she is the wife of the respondent. They have a son born in the wedlock on 26.11.2019. The petitioner and her son had gone to her natal home in Chalakkudy. The petitioner developed severe pain on her left leg and foot. She had to undergo a surgery in a private hospital. The respondent took the child to his house promising to return back after two weeks. Instead, the respondent filed the above original petitions. It is extremely difficult for the petitioner to travel from her house at Chalakkudy to the Family Court, Ettumanoor. Therefore, the cases may be transferred.
3. The respondent has filed his objections in the transfer
petitions, inter-alia, denying the allegations in the transfer petitions. It is his case that the petitioner neglected to look after the child. In March 2020, the petitioner informed the respondent that she was being treated for back pain and numbness on her leg in a private hospital. It is the petitioner, who asked the respondent to take the child along with him. The respondent is taking care of the child from the age of three months. Recently, the child underwent a surgery as evidenced by Annexure R1. Even then, the petitioner did not go to see the child. As the child is young, it would be difficult for the child to travel from Kottayam to Irinjalakuda, to facilitate interim custody and access to the petitioner. The distance from the petitioner’s residence to Family Court,
Irinjalakuda is 40 kilometers and to Family Court, Ettumanoor is 100 kilometers. Therefore, even if the proceedings are transferred to the Family Court,
Irinjalakuda, the petitioner would have to necessarily travel. Taking into account the convenience of the child, the transfer petitions may be dismissed.
4. Heard; Smt.K.Bhadra Kumari, the learned counsel appearing for the petitioner and Sri.Jinu Joseph, the learned counsel appearing for the respondent.
5. The question is whether the transfer petitions are to be allowed.
6. It is evident from the pleadings and materials on record, that the child of the couple is now only three years of age.
7. Undisputedly, the child is in the custody of the respondent from the age of three months and is residing in Kottayam District, within the jurisdiction of the Family Court, Ettumanoor.
8. OP No.980/2020 is filed by the respondent to declare
him as the legal guardian of the child and OP (HMA) No.896/2020 is filed for a decree of divorce. As OP No.980/2020 pertains to the custody of the child, necessarily the child would have to be produced before the concerned Family Court to facilitate interim custody and access of the child to the petitioner. The child is residing within the jurisdiction of the Family Court, Ettumanoor for the last 3 years. Thus, I am of the firm view that it is the convenience of
the child, that has to be given due preference and weightage.
9. A Division Bench of this Court in Vidhya Mundekkat vs. Akhilesh Jayaram [2021 (6) KHC 506] has categorically
held that there is no invariable rule that, whenever a woman
makes a request for transfer of proceedings, pointing out inconvenience, this Court is obliged to exercise its powers under Sec.24 of the Code of Civil Procedure.
10. On a comprehensive consideration of the pleadings
and materials on record and taking into account that the child of the couple is only three years of age and is residing with the respondent within the jurisdiction of the Family Court, Ettumanoor, I am not inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure and order the transfer of the above two original petitions. Nonetheless, taking into account the ill-health projected by the petitioner, it would be upto to her to move the Family Court, Ettumanoor and seek for dispensation of her personal appearance. If such application is made, the same shall be compassionately considered by the Family Court.
In the result, the transfer petitions are dismissed with the above observations. sd/- C.S.DIAS, JUDGE rkc/30.11.22 APPENDIX OF TR.P(C) 194/2021 PETITIONER ANNEXURES ANNEXURE I A TRUE COPY OF THE CLINICAL SUMMARY AND DISCHARGE RECORD ISSUED BY THE LITTLE FLOWER HOSPITAL, ANGAMALY TO THE PETITIONER ANNEXURE II A TRUE COPY OF THE PETITION O.P.(HMA) NO.896/2020 OF FAMILY COURT, ETTUMANOOR FILED BY THE RESPONDENT. APPENDIX OF TR.P(C) 177/2021 PETITIONER ANNEXURES ANNEXURE I TRUE COPY OF THE CLINICAL SUMMARY AND DISCHARGE RECORD ISSUED BY THE LITTLE FLOWER HOSPITAL, ANGAMALY TO THE PETITIONER. ANNEXURE II TRUE COPY OF THE PETITION OP.NO.980/2020 OF FAMILY COURT, ETTUMANOOR FILED BY THE RESPONDENT.