TR.P(C) NO. 595 OF 2021
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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. 595 OF 2021
AGAINST THE ORDER/JUDGMENT IN OP 345/2021 OF FAMILY COURT,
KALPETTA
PETITIONER/RESPONDENT:
ASWATHY C.G.,
AGED 24 YEARS
D/O. GANGANDHARAN C.G.,
CHUNDAPAZHOOR HOUSE, ARIYALLUR VILLAGE, TIRURANGADI
TALUK, USHA NURSERY, ARIYALLUR P.O.,
MALAPPURAM 676 312.
BY ADVS.
C.HARIKUMAR
SANDRA SUNNY
ARUN KUMAR M.A
RESPONDENT/PETITIONER:
VYSAKH C.S.,
AGED 32 YEARS
S/O. SIVAN,
KUNNUMMAL HOUSE,
THOMATTUCHAAL, KADALMAAD, SULTHAN BATHERY TALUK,
VADUVANCHAAL P.O. , WAYANAD 673 581.
BY ADVS.
M.R.HARIRAJ
THANUJA ROSHAN
VISWAJITH C.K
GANGA A.SANKAR
GISHA G. RAJ
REJIVUE K.C.
ALINA ANNA KOSE
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TR.P(C) NO. 595 OF 2021
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ORDER
The transfer petition is filed under Section 24 of the Code of Civil Procedure, seeking to transfer O.P No.345/2021 (Annexure-A1) from the Family Court, Kalpetta to the Family Court, Tirur.
2. The petitioner's case, in brief, in the memorandum of transfer petition is that; her marital relationship with the respondent is irretrievably broken. The respondent has filed Annexure A1, inter alia, for the custody of their minor child. The petitioner and the child are residing at Tirurangadi in Malappuram District, which alone has the jurisdiction to entertain Annexure A1, in view of Section 9 of the Guardian and Wards Act, 1890. Severe inconvenience would be caused to the petitioner and the child, if she is to contest Annexure A1 before the Family Court, Kalpetta. Hence the transfer petition.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the TR.P(C) NO. 595 OF 2021 3 respondent.
4. The learned counsel appearing for the respondent submits that the respondent has no serious objection in the case being transferred from the Family Court, Kalpetta to the Family Court, Tirur, but there may be a direction to the Family Court, Tirur, to refer the parties to mediation immediately on their appearance and failing the mediation proceeding, the Family Court may consider Annexure-A2 application, filed by the respondent, for the interim custody of the child.
5. It is on record that the petitioner and her child are residing at Tirurangadi in Malappuram District. In view of the statutory stipulation in Section 9 of the Guardian and Wards Act,1890, it is the court where the child ordinarily resides that has the jurisdiction to entertain a petition filed under the said Act.
6. The law in respect of transfer of proceedings, particularly in matrimonial disputes, is no longer res-integra, in view of the categoric declaration of law by the Hon'ble TR.P(C) NO. 595 OF 2021 4 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] and Santhini V. Vijaya Venkatesh [2017 (4) KLT 415 (SC)]. 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.
7. In the light of the uncontroverted averments in the memorandum of transfer petition and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am inclined to allow the transfer petition by exercising the discretionary powers of this Court under Section 24 of the Code of Civil Procedure.
In the result,, I allow the transfer petition by ordering the transfer of O.P. No.345/2021 from the Family Court, Kalpetta to the Family Court,Tirur. The Registry shall forward a copy of this judgment to the Family Court, Kalpetta with instructions to forthwith transmit the records TR.P(C) NO. 595 OF 2021 5 in O.P. 345/2021 to the Family Court, Tirur. The parties are directed to appear before the Family Court, Tirur on 1.7.2022. Immediately on the appearance of the parties, the Family Court shall refer them to the Mediation Centre. In the event of the failure of the mediation proceeding, the Family Court, Tirur, shall expeditiously consider the application for interim custody of the child, in accordance with law, and pass orders on the same.
Sd/-
ma/31.5.2022 C.S.DIAS, JUDGE
/True copy/
TR.P(C) NO. 595 OF 2021
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APPENDIX OF TR.P(C) 595/2021
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE PETITION IN O.P. NO.
345 OF 2021 FILED BY THE RESPONDENT BEFORE THE HONBLE FAMILY COURT KALPETTA DATED 07.09.2021.
Annexure A2 THE TRUE COPY OF THE PETITION IN I.A. NO. 2 OF 2021 IN O.P. NO. 345 OF 2021 FILED BY THE RESPONDENT BEFORE THE HONBLE FAMILY COURT, KALPETTA DATED 7.09.2021.