IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
TR.P(C) NO. 29 OF 2022
TRANSFER OF OP 779/2021 OF FAMILY COURT, MUVATTUPUZHA TO THE
FAMILY COURT, KANNUR.
PETITIONER/S:
SOUMYA T.P
AGED 34 YEARS
D/O. CHANDHANAKUNJI, AKKALATH HOUSE, VELLOR POST,
PAYYANNUR, KANNUR DISTRICT 670 307.
BY ADVS.
M.SASINDRAN
P.K.SUBHASH
RESPONDENT/S:
NIJU K.RAJAN,
AGED 37 YEARS
S/O. RAJAN.K.K, KANDOTHUMOOLAYI HOUSE, KANINADU POST,
PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT 682 310.
BY ADVS.
BIMALA BABY
NIKITTA TRESSY GEORGE
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Tr.P(C) No.29 of 2022
C.S DIAS,J.
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Tr.P(C) No.29 of 2022
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Dated this the 31st day of May, 2022.
ORDER
The transfer petition is filed under Sec.24 of the Code of Civil Procedure seeking to transfer O.P No.779/2021 (Annexure A1) from the Family Court, Muvattupuzha to the Family Court, Kannur.
2. The petitioner's case in brief, in the memorandum of transfer petition is that, the respondent - her husband - has filed Annexure A1, seeking for return of money and gold ornaments and also for compensation. The petitioner has already filed OP 1294/2021 (Annexure AII) and OP 1295/2021 (Annexure AIII) before the Family Court, Kannur, seeking past maintenance for herself and her child and for permanent custody of the child, respectively. The petitioner is unemployed. She is residing with her parents within the jurisdiction of the Family Court, Kannur. The distance between her 3 Tr.P(C) No.29 of 2022 residence and the Family Court, Muvattupuzha is more than 300 kilometers. The respondent has filed Annexure A1 just to harass her. The petitioner would be put to severe difficulty and hardship if she is to contest Annexure A1 before the Family Court, Muvattupuzha. Hence, the transfer petition.
3. Heard; Sri.M.Sasindran, the learned counsel appearing for the petitioner and Smt.Bimala Baby, the learned counsel appearing for the respondent.
4. Sri.M.Sasindran reiterated the contentions in the transfer petition and sought for transfer of Annexure A1 from the Family Court, Muvattupuzha to the Family Court, Kannur.
5. Smt.Bimala Baby opposed the transfer petition on the ground that the petitioner has violated the conditions in the mediation agreement entered into between the parties in Annexure AIII proceeding. According to her, the petitioner is not providing interim 4 Tr.P(C) No.29 of 2022 custody of her child to the respondent. Therefore, the transfer petition may be dismissed.
6. It is on record that Annexures AII and AIII proceedings, filed by the petitioner against the respondent, are pending before the Family Court, Kannur. The respondent has not sought for transfer of the above proceedings. Therefore, necessarily he has to appear before the Family Court, Kannur and contest the same. On the other hand, the petitioner and her six year old son are residing at Payyannur, Kannur, within the jurisdiction of the Family Court, Kannur.
7. In view of Sec.9 of the Guardian and Wards Act, 1890, it is the Family Court, Kannur, which has the jurisdiction to entertain a petition for custody of the child. Therefore, I find that the petitioner has made out a case for the transfer of Annexure A1 from the Family Court, Muvattupuzha to the Family Court, Kannur.
8. The law in respect of transfer of proceedings, particularly in matrimonial disputes, is no longer res- 5 Tr.P(C) No.29 of 2022 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] wherein it is 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.
9. In the light of the uncontroverted averments in the memorandum of transfer petition, particularly the fact that the petitioner and the child are residing at Kannur and Annexures AII and AIII are pending before the Family Court, Kannur, I am of the definite view that Annexure A1 is to be transferred from the Family Court, Muvattupuzha to the Family Court, Kannur. 6 Tr.P(C) No.29 of 2022
10. In the totality of the facts and circumstances of the case, the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am satisfied that the discretionary powers of this Court under Section 24 of the Code of Civil Procedure is to be exercised.
In the result, I allow the transfer petition by ordering the transfer of O.P. 779/2021 from the Family Court, Muvattupuzha to the Family Court, Kannur. The Registry shall forward a copy of this judgment to the Family Court, Muvattupuzha, with instructions to forthwith transmit the records in O.P.No.779/2021 to the Family Court, Kannur. Needless to mention that if the respondent has any grievance regarding the non- compliance of the terms and conditions of the mediation agreement entered into between the parties in Annexure AIII proceedings, the respondent would be at liberty to move the competent Court for enforcement of the mediation agreement. The parties shall appear before 7 Tr.P(C) No.29 of 2022 the Family Court, Kannur either in person or through their Counsel on 16.6.2022.
sd/-
Sks/31.5.2022 C.S.DIAS, JUDGE
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Tr.P(C) No.29 of 2022
APPENDIX OF TR.P(C) 29/2022
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE O.P. NO. 779/2021 FILED
BY THE RESPONDENT DATED 26.10.2021 BEFORE THE FAMILY COURT, MUVATTUPUZHA.
Annexure AII TRUE COPY OF THE O.P. NO. 1294/2021 FILED BY THE PETITIONER NOVEMBER 2021 BEFORE THE FAMILY COURT, KANNUR.
Annexure A1II TRUE COPY OF THE O.P. NO. 1295/2021 FILED BY THE PETITIONER DATED NOVEMBER 2021 BEFORE THE FAMILY COURT, KANNUR.