Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 19TH DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 TR.P(C) NO. 352 OF 2022 IN OPGW 830/2022 OF FAMILY COURT, MAVELIKKARA PETITIONER/ RESPONDENT NO.2 M.C.MATHEW, AGED 64 YEARS S/O. CHACKO, MEMALA AALUNKAL HOUSE, PURAMATTAM PANCHAYAT VENNIKKULAM, PATHANAMTHITTA DISTRICT. BY ADVS. ABRAHAM SAMSON LOVELY SAMSON RESPONDENTS/ PETITIONER-RESPONDENT NO.3& RESPONDENT NO.1:
1 DANIEL RAJAN, S/O. KURIAKOSE, AGED 41 YEARS, KUNDATHIL VEETTIL, CHENNITHALA, KIZHAKKEVAZHI MURI, THRIPERUMTHARA VILLAGE, CHENNITHALA P.O., ALAPPUZHA DISTRICT-690105. 2 BABY MATHEW, AGED 60 YEARS W/O. MATHEW, MEMALA AALUNKAL HOUSE, PURAMATTAM PANCHAYATH VENNIKULAM, PATHANAMTHITTA DISTRICT- 698534. 3 SARA MATHEW, AGED 34 YEARS D/O. M.C. MATHEW, MEMALA AALUNKAL HOUSE, PURAMATTAM PANCHAYATH VENNIKULAM, PATHANAMTHITTA DISTRICT- 698534. BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:- Dated this the 19th day of September,2022
ORDER
The transfer petition is filed under Section 24 of the Code of Civil Procedure,1908(in short, 'C.P.C.'), to transfer O.P.(G&W) No.830/2022 (Annexure-A1), from the Family Court, Mavelikkara to the Family Court, Thiruvalla.
2. The petitioner’s case, in brief, in the
memorandum of transfer petition is that, he is the father of the third respondent. The second respondent is his wife. The first respondent is the husband of the third respondent. The marital relationship between the respondents 1 and 3 is strained. The said respondents have a child born in their wedlock named ‘Aiden Daniel’. The first respondent has filed O.P.No.830/2022 (Annexure-A1) before the Family Court, Mavelikkara, for the custody of the child. The third respondent has filed O.P.No.265/2022 -:3:- (Annexure-A2) and O.P.No.266/2022 (Annexure-A3) against the first respondent before the Family Court, Thiruvalla, for a decree of divorce and a decree for return of money and other ancillary reliefs, respectively. Due to the matrimonial cruelty that was meted out on the third respondent by the first respondent, she was constrained to leave the matrimonial home. She and the child are permanently residing in her parental home at Vennikulam, within the jurisdiction of the Family Court, Thiruvalla. The child is presently pursuing his studies in the II nd standard in Mar Theophilos Bathany Convent Public School, Vennikulam. The third respondent has executed a power of attorney in favour of the petitioner and he is contesting the proceedings on behalf of the third respondent before the Family Courts. It would cause severe inconvenience and hardship to the child to travel all the way from -:4:- Vennikulam to Mavelikkara, to contest Annexure-A1. Hence, the transfer petition.
3. The first respondent has filed a counter
affidavit refuting the allegations in the transfer petition. He has contended that the child was originally studying within the jurisdiction of the Family Court, Mavelikkara. The child was snatched away by the third respondent from his residence and taken to her parental home at Vennikulam. The removal of the child from the jurisdiction of the Family Court, Mavelikkara, will not oust the jurisdiction of the Family Court, Mavelikkara. Hence, the transfer petition may be dismissed.
4. Heard; Sri. Abraham Samson, the learned counsel appearing for the petitioner and Sri.Rinny
Stephen Chamaparampil, the learned counsel appearing for the first respondent. Service is complete on the second respondent. Since the
petitioner is the power of attorney holder of the third -:5:- respondent, I dispense with notice to her.
5. Admittedly, the third respondent has already filed Annexures-A2 and A3 before the Family Court, Thiruvalla. Annexure-A4 certificate substantiates that the child is pursuing his studies in Mar Theophilos
Bathany Convent Public School at Vennikulam. It is undisputed that the child is residing with the petitioner and the second respondent, within the jurisdiction of
the Family Court, Thiruvalla. The first respondent is contesting Annexures-A1 and A2 before the Family Court, Thiruvalla. Annexure-A1 is filed for the custody of the child. Therefore, necessarily, the child will have to be produced before the Family Court, Mavelikkara, which would cause severe inconvenience and hardship to the child, who is hardly seven years of age.
6. It is well settled in a catena of decisions by the Hon’ble Supreme Court in Sumitha Sing V. Kumar Sanjay and another [(2001)10 SCC 41)], -:6:- Mona Aresh Goel V. Aresh Satya Goel [(2000) 9 SCC
255], Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap [AIR 2016 SC 3584], Santhini V. Vijaya Venkatesh [2017 (4) KLT 415 (SC)], N.C.V. Aiswarya v. A.S. Sharavana Karthik Sha[2022(5) KHC 185] and Valsal Nisha v. Rajesh Soman Nair [2020(8) KLR 475], that the convenience of the woman and children has to be given due preference and weightage, while ordering the transfer of a case from one Court to another.
7. In the light of the law laid down in the
afore-cited decisions, the pleadings and materials on record and the totality of the facts and circumstances of the case, particularly the fact that the seven year old child is residing within the jurisdiction of the Family Court, Thiruvalla, I am inclined to exercise the discretionary powers of this Court under Section 24 of the C.P.C. and order the transfer of Annexure-A1, so
-:7:- that the cases can be consolidated and jointly tried, which would save judicial time and avoid conflict of decisions. Nonetheless, I make it clear that the transfer of Annexure-A1 will not stand in the way of the first respondent raising the question regarding the ordinary residence of the minor child before the Family Court, Thiruvalla. In the result, I pass the following orders: In the result,
(i) The transfer petition is allowed, by ordering the transfer of O.P.(G&W)No.830/2022 from the Family Court, Mavelikkara to the Family Court, Thiruvalla.
(ii) The parties would be at liberty to move the Family Court, Thiruvalla, to seek for consolidation and joint trial of the proceedings between them.
(iii) The Registry shall forthwith forward a copy of the
order to the Family Court, Mavelikkara with
instructions to transmit the records in O.P. (G&W)No.830/2022 to the Family Court, -:8:- Thiruvalla.
(iv) The Family Court, Thiruvalla shall, immediately on receipt of the records in O.P. (G&W)No.830/2022, post the case along with Annexure-A1 and A2.
(v) If the question of the ordinary residence is raised by the first respondent before the Family Court, Thiruvalla, the same shall be considered and decided in accordance with law dehors this
order.
Sd/- C.S.DIAS,JUDGE DST/19.09.22 //True copy/ P.A.To Judge -:9:- APPENDIX PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF OP (G&W) 830/2022 FILED BY THE 1ST RESPONDENT DATED 30/05/2022. TRUE COPYANNEXURE OF OP (DIV) A2 265/2022 FOR DIVORCE FILED IN FAMILY COURT, THIRUVALLA DATED 26/05/2022 BY THE 3RD RESPONDENT.
ANNEXURE A3 TRUE COPY OF OP 266/2022 FOR DIVORCE FILED IN FAMILY COURT, THIRUVALLA DATED 26/05/2022 FILED BY RESPONDENT NO.3. ANNEXURE A4 TRUE COPY OF CERTIFICATE ISSUED BY MAR THEOPHILOS BETHANY SCHOOL DATED 09/06/2022. ANNEXURE A5 TRUE COPY OF NOTICE RECEIVED BY THE PETITIONER IN FAMILY COURT, MAVELIKKARA DATED 03/06/2022, OP(GW)830/2022. RESPONDENTS’ ANNEXURES ANNEXURE R1(a) A TRUE COPY OF THE ORIGINAL PETITION IN O.P. (DIV.) NO.831/2022 OF THE FAMILY COURT, MAVELIKARA. ANNEXURE R1(b) A TRUE COPY OF THE IDENTITY CARD ISSUED TO AIDEN DANIEL FROM INFANT JESUS ENGLISH MEDIUM SCHOOL, MAVELIKARA ANNEXURE R1(c) A TRUE COPY OF THE FEE PAYMENT RECEIPT DATED 03.06.2020 OF AIDEN DANIEL ISSUED FROM INFANT JESUS ENGLISH MEDIUM SCHOOL, MAVELIKARA FOR CLASS UKG ANNEXURE R1(d) A TRUE COPY OF FEE PAYMENT RECEIPT DATED 12.04.2022 OF AIDEN DANIEL ISSUED FROM INFANT JESUS ENGLISH MEDUM SCHOOL, MAVELIKARA FOR CLASS I ANNEXURE R1(e) A TRUE COPY OF FEE PAYMENT RECEIPT DATED 04.05.2022 OF AIDEN DANIEL ISSUED FROM INFANT JESUS ENGLISH MEDUM SCHOOL, MAVELIKARA FOR CLASS II ANNEXURE R1(f) A TRUE COPY OF THE BAPTISM CERTIFICATE OF AIDEN DANIEL ISSUED FROM MALANKARA MARTHOMA SYRIAN CHURCH, CHENNITHALA ANNEXURE R1(g) A TRUE COPY OF THE AADHAAR CARD OF AIDEN DANIEL