Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944 TR.P(C) NO. 445 OF 2021 OP 185/2019 OF FAMILY COURT, KOTTAYAM PETITIONER/RESPONDENT: NEETHU .V.S AGED 29 YEARS D/O. VALSALAN, MUKKALAMPADE MEKKE PUTHENVEEDU, VENKULAM, UCHAKKADA, KAROOTTU P.O., THIRUVANANTHAPURAM-695 506 BY ADVS. L.MOHANAN LIGEY ANTONY RESPONDENT/PETITIONER: JOHN PETER .E.S S/O.S ATHYAN, ENPARAYIL HOUSE, PATHINANCHILKADAVU, VELOOR VILLAGE, KOTTAYAM WEST P.O., PIN-686 003 BY ADV SIBI THOMAS JACOB THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH Tr.P(C).734/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944 TR.P(C) NO. 446 OF 2021 OP 66/2019 OF FAMILY COURT, KOTTAYAM PETITIONER/PETITIONER: NEETHU .V.S D/O VALSALAN, MUKKALAMPADE MEKKE PUTHENVEEDU, VENKULAM, UCHAKKADA, KAROOTTU P.O.THIRUVANANTHAPURAM- 695 506. BY ADVS. L.MOHANAN LIGEY ANTONY RESPONDENTS/RESPONDENTS:
1 JOHN PETER .E.S S/O SATHYAN, ENPARAYIL HOUSE, PATHINANCHILKADAVU, VELOOR VILLAGE, KOTTAYAM WEST P.O.PIN-686 003. 2 SATHYAN, ENPARAYIL HOUSE, PATHINANCHILKADAVU, VELOOR VILLAGE, KOTTAYAM WEST P.O.PIN-686 003. 3 AMALA SATHYAN, W/O SATHYAN, ENPARAYIL HOUSE, PATHINANCHILKADAVU, VELOOR VILLAGE, KOTTAYAM WEST P.O.PIN-686 003. 4 SABITHAMOL.E.S, W/O SUMESH, KANIYAVILAYIL VEEDU, OPP POST OFFICE, ELAPPARA, ELAPPARA P.O.KOTTAYAM, PIN-685 501. BY ADV SIBI THOMAS JACOB THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.08.2022, ALONG WITH Tr.P(C).734/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944 TR.P(C) NO. 453 OF 2021 OP(DIV) 377/2019 OF FAMILY COURT, KOTTAYAM PETITIONER: NEETHU V.S., D/O. VALSALAN, MUKKALAMPADE MEKKE PUTHENVEEDU, VENKULAM, UCHAKKADA, KARODU P.O., THIRUVANANTHAPURAM-695506. BY ADVS. L.MOHANAN LIGEY ANTONY RESPONDENT: JOHN PETER E.S., S/O. SATHYAN, ENPARAYIL HOUSE, PATHINANCHILKADAVU, VELOOR VILLAGE, KOTTAYAM WEST P.O., PIN-686003. BY ADV SIBI THOMAS JACOB THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH Tr.P(C).734/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944 TR.P(C) NO. 734 OF 2021 OP 1227/2021 OF FAMILY COURT, ETTUMANOOR PETITIONER: NEETHU V.S. D/O.VALSALAN, MUKKALAMPADE MEKKE PUTHENVEEDU, VENKULAM, UCHAKKADA, KARODU.P.O, THIRUVANANTHAPURAM-695506. BY ADVS. L.MOHANAN LIGEY ANTONY RESPONDENT: JOHN PETER E.S S/O.SATHYAN, ENPARAYIL HOUSE, PATHINANCHILKADAVU, VELOOR VILLAGE, KOTTAYAM WEST.P.O, PIN-686003. BY ADVS. SIBI THOMAS JACOB SUMESH S. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH Tr.P(C).446/2021, DELIVERED THE FOLLOWING: -:5:- Dated this the 25th day of August,2022
COMMON ORDER
As the transfer petitions arise out of the marital disputes between the petitioner ‘Neethu’(wife) and the respondent ‘John Peter’(husband), they are being disposed of by this common order.
2. Tr.P.(C)No.445/2021 is filed by the wife to
transfer O.P.No.185/2019 filed by the husband against the wife; Tr.P.(C)No.446/2021 is filed by the wife against the husband and his relatives, to transfer O.P.No.66/2019; Tr.P.(C)No.453/2021 is filed by the
wife against the husband, to transfer O.P(Div)No.377/2018 and Tr.P.(C)No.734/2021 is filed by the wife against the husband, to transfer O.P.No.1227/2021 all from the Family Court, Ettumanoor to the Family Court, Thiruvananthapuram. The parties and pleadings are, for the sake of convenience, referred to as per the status in Tr.P. -:6:- (C)No.446/2021, since it is the most comprehensive transfer petition.
3. The petitioner was married to the first
respondent on 28.12.2017. They are issueless. Due to the matrimonial cruelty that was allegedly meted out on the petitioner by the first respondent, she was constrained to file O.P.(Div)No.377/2019 before the
Family Court, Ettumanoor, against the first respondent, for a decree of divorce. She has also filed O.P.No.66/2019 against the husband, his parents and sister, before the same Court, for a decree for return of money and gold ornaments. The first respondent has filed O.P.No.185/2019 against the petitioner, before the same Court, for a decree of restitution of conjugal
rights. The first respondent has also filed O.P.No.1227/2021 against the petitioner, before the same Court, seeking a decree for return of money and gold ornaments. The petitioner filed the two cases -:7:- before the Family Court, Ettumanoor, as she was then residing within the territorial jurisdiction of the said court, which was the court of competent jurisdiction. The petitioner was driven out from the matrimonial home. She was compelled to seek refuge in an orphanage at ‘Kalathilppadi’ named as “Snehakkoodu”. Thereafter, she has shifted her residence to Thiruvananthapuram. She is a dentist and is employed in Thiruvananthapuram. There is no person to chaperone the petitioner from Thiruvananthapuram to Ettumanoor, to contest the above four cases. Hence, the transfer petition.
4. The first respondent has filed a counter
affidavit, inter alia, denying the allegations in the transfer petitions. He has contended that there is no bona fides on the part of the petitioner in seeking for the transfer of the cases. In fact, it is she who left the matrimonial home to live with another person. If the -:8:- cases are transferred, it would cause hardship and difficulties to the respondent. Hence, the transfer petitions may be dismissed.
5. Heard; Smt. Ligey Antony, the learned counsel appearing for the petitioner and Sri. Sibi Thomas Jacob, the learned counsel appearing for the respondents.
6. The question is whether the transfer petitions are to be allowed?.
7. Pursuant to the order dated 29.07.2022, passed by
this Court, directing the petitioner to produce her residential address proof in Thiruvananthapuram, the petitioner has in Tr.P.(C)No.734/2021 produced her passport, Election ID Card and also her bank passbook, which all substantiate that she is a permanent resident of Thiruvananthapuram. It is also on record that the petitioner is a Dentist and is presently working in a
clinic in Thiruvananthapuram. In the above factual -:9:- background, considering the fact that the petitioner is a lady, only aged 30 years, I am of the firm view that the convenience of the petitioner has to be given due weightage and preference. Nonetheless, the personal appearance of the respondents 2 to 4 in Tr.P. (C)No.446/2021, who are only formal parties, can be dispensed with.
8. The question that the convenience of the wife is
to be given due preference is no longer res integra, in view of the categoric declaration of law by the Hon'ble Supreme Court in Sumitha Sing V. Kumar Sanjay and another [(2001)10 SCC 41)], 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)] Valsal Nisha v. Rajesh Soman Nair [2020(8) KLR 475].
9. Taking into account the fact that Family Court, -:10:-
Thiruvananthapuram is a heavy court and that some preference is to be shown in favour of the first respondent, I am of the view that the cases can be transferred to the Family Court, Attingal, which is lighter court and is en-route from Kottayam to Thiruvananthapuram.
9. In the light of the law laid down in the
afore-cited decisions, the pleadings and materials on record, the facts and circumstances of the cases, and my findings rendered above, I am inclined to exercise the discretionary powers of this Court under Section 24 of the CPC and order allow the transfer petitions. In the result, I allow the transfer petitions as follows:
(i) Tr.P(C) No.445/2021 is allowed by ordering the transfer of O.P.No.185/2019, from the Family Court, Ettumanoor, to the Family Court, Attingal.
(ii) Tr.P(C) No.446/2021 is allowed by ordering -:11:- the transfer of O.P.No.66/2019 from the Family Court, Kottayam, to the Family Court, Attingal.
(iii) Tr.P(C) No.453/2021 is allowed by ordering the transfer of O.P.(Div)No.377/2019 from the Family Court, Kottayam, to the Family Court, Attingal.
(iv) Tr.P(C) No.734/2021 is allowed by ordering the transfer of O.P.No.1227/2021 from the Family Court, Ettumanoor, to the Family Court, Attingal.
(v) The parties would be at liberty to move the Family Court, Attingal and seek for consolidation and joint trial of all the proceedings between them.
(vi) The Family Court, Attingal, shall not insist for the personal appearance of the respondents 2 to 4 in O.P.No.66/2019, unless it is so warranted.
(vii) The Registry shall forthwith forward a copy of the common order to the Family Court, -:12:-
Ettumanoor, with instructions to transmit the records in the above numbered cases to the Family Court, Attingal. (viii) The Family Court, Attingal shall, immediately on receipt of the records in the above numbered cases, issue notice to the parties for their appearance.
Sd/- C.S.DIAS,JUDGE DST/25.08.22 //True copy/ P.A.To Judge -:13:- APPENDIX OF TR.P(C) 445/2021 PETITIONER ANNEXURES Annexure A1 COPY OF THE PETITION IN OP185 OF 2019 ON THE FILE OF THE FAMILY COURT, KOTTAYAM RESPONDENT ANNEXURES: NIL -:14:- APPENDIX OF TR.P(C) 446/2021 PETITIONER ANNEXURES Annexure A1 COPY OF THE PETITION IN OP 66 OF 2019 ON THE FILE OF THE FAMILY COURT, KOTTAYAM RESPONDENT ANNEXURES ANNEXURE R1 : PHOTOGRAPHS POSTED BY THE PETITIONER IN SOCIAL MEIDA AFTER HER SECOND MARRIAGE -:15:- APPENDIX OF TR.P(C) 453/2021 PETITIONER ANNEXURES ANNEXURE A1 COPY OF CHARGE SHEET NO.924/2019 IN CRIME NO.15/2019 REGISTERED BY KOTTAYAM WEST POLICE STATION. ANNEXURE A2 COPY OF THE PETITION IN OP (DIV.) COURT, KOTTAYAM. RESPONDENT ANNEXURES: NIL -:16:- APPENDIX OF TR.P(C) 734/2021 PETITIONER ANNEXURES ANNEXURE A1 COPY OF THE PETITION IN OP NO.1227/2021 ON THE FILE OF THE FAMILY COURT, ETTUMANOOR, KOTTAYAM RESPONDENT ANNEXURES ANNEXURE R1: PHOTOGRAPHS POSTED BY THE PETITIONER IN SOCIAL MEIDA AFTER HER SECOND MARRIAGE.