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Tr.P (C) No.490 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
TR.P(C) NO. 490 OF 2021
TO TRANSFER OP 135/2020 OF FAMILY COURT, KALPETTA
PETITIONER/S:
MILDA
AGED 25 YEARS
D/O. THANKACHAN, VELIYILPARAMBIL,
KURUPPANKULANGARA P.O, CHERTHALA SOUTH
PANCHAYATH, WARD NO. 8, ALAPPUZHA 688 539
BY ADV R.K.PRASANTH
RESPONDENT/S:
BIJU K.J
AGED 44 YEARS
S/O. JOSEPH, KIHKKWRHIL HOUSE, PULPALLY, PAKKOM
P.O, BATHERY TALUK, WAYANAD DISTRICT 673 592
BY ADVS.
P.ANUROOP
V.K.SREENA
BENOY JOSEPH
THIS TRANSFER PETITION (CIVIL) HAVING
COME UP FOR ADMISSION ON 14.06.2022, THE
COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Tr.P (C) No.490 of 2021
C.S DIAS,J.
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Tr.P (C) No.490 of 2021
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Dated this the 14th day of June, 2022.
ORDER
The transfer petition is filed under Sec.24 of the Code of Civil Procedure, seeking to transfer O.P No.135/2020 (Annexure A4) from the Family Court, Kalpetta to the Family Court, Alapuzha.
2. The petitioner's case, in brief, in the memorandum of transfer petition is that, she is the wife of the respondent. They are issue-less. Due to the matrimonial cruelty meted out on the petitioner, she has filed MC No.43/2018 (Annexure A2) under the provisions of the Protection of Women from Domestic Violence Act before the Court of the Judicial First Class Magistrate, Cherthala. As a counterblast to the above proceedings, the respondent has filed Annexure A4, seeking a decree for restitution of conjugal rights. The marital 3 Tr.P (C) No.490 of 2021 relationship is irretrievable broken. The petitioner is residing in her parental home in Cherthala. There is no person to chaperone her from Cherthala to Kalpetta to defend Annexure A4. Moreover, the respondent has also not sought for transfer of Annexure A2. Therefore, necessarily, he would have to contest Annexure A2 before the Family Court, Cherthala. Hence, the transfer petition.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respndent.
4. The law with respect to transfer of proceedings, particularly matrimonial disputes, 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 [2002 KHC 1889], Mona Aresh Goel V. Aresh Satya Goel [2000 KHC 1835], Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap [2016 KHC 6489] and Santhini V. Vijaya Venkatesh [2017 (5) 4 Tr.P (C) No.490 of 2021 KHC 48]. The Hon'ble Supreme Court has held that it is the convenience of the woman and children that has to be looked into, while ordering the transfer of a case from one Court to another.
5. In the light of the law laid down in the afore-cited decisions, the uncontroverted pleadings and materials on record, the totality of the facts and circumstances of the case, particularly the fact that Annexure A2 is pending consideration before the Court of the Judicial First Class Magistrate, Cherthala and now the petitioner has filed OP No.986/2021 before the Family Court, Cherthala, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure and order the transfer of Annexure A4.
In the result, I allow the transfer petition by ordering the transfer of O.P No.135/2020 from the Family Court, Kalpetta to the Family Court, Alappuzha. The parties would be at liberty to seek for consolidation and joint trial of all the cases 5 Tr.P (C) No.490 of 2021 between them. The Registry shall forward a copy of this judgment to the Family Court, Kalpetta with instructions to forthwith transmit the records in Annexure A4 to the Family Court, Alappuzha. The Family Court, Alappuzha shall, immediately on the receipt of the records in Annexure A4, post the case along with OP No.986/2021.
sd/-
Sks/14.6.2022 C.S.DIAS, JUDGE 6 Tr.P (C) No.490 of 2021 APPENDIX OF TR.P(C) 490/2021 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE C.M.P NO. 7278/2019 IN M C NO 43/2018, FILED UNDER SECTION 23 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLANCE ACT, 2005 Annexure A2 A TRUE COPY OF THE INTERIM ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT AT CHERTHALA IN C M P NO. 7278/2019 IN M.C 43/2018 DATED 08- 01-2020, BY GRANTING RS. 5000/- RUPEES FIVE THOUSAND) AS MAINTENANCE TO THE PETITIONER.
Annexure A3 A TRUE COPY OF THE SUMMONS FROM THE FAMILY COURT, KALPETTA IN O.P NO.
135/2020, DATED 25-08-2021 Annexure A4 A TRUE COPY OF THE ORIGINAL PETITION FOR RESTITUTION OF CONJUGAL RIGHTS, BEARING O.P NO. 135/2020 IN THE FILE OF FAMILY COURT OF KALPETTA DATED 09- 03-2021 Annexure A5 A TRUE COPY OF THE HALL TICKET (PROVISIONAL) ISSUED TO THE PETITIONER BY PRO-VICE CHANCELLOR, SREE SAKARACHARYA UNIVERSITY OF KALADI FOR 6TH SEMESTER B.A DANCE (BARATHANATYAM) 2018 ADMISSION REGULAR EXAMINATION APRIL 2021.