Kerala High Court
Sabitha K.V vs Anil.S on 11 August, 2021
TrPC.332/19 &
connected cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
TR.P(C) NO. 332 OF 2019
AGAINST THE ORDER/JUDGMENT IN OP 25/2019 OF FAMILY
COURT,THRISSUR, THRISSUR
PETITIONER/S:
SABITHA K.V.,
AGED 44 YEARS
D/O.GANGADARAN NAIR, KOLOTHU VEETTIL, NILAMBUR
VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-
679329.
BY ADVS.
P.SAMSUDIN
SRI.JITHIN LUKOSE
RESPONDENT/S:
ANIL.S,
AGED 47 YEARS
S/O.SANKARAN NAIR, PUZHAVATH KARAYIL HOUSE,
CHANGANASSERI P.O., KOTTAYAM DISTRICT, PIN- 686101.
BY ADVS.
SRI.C.R.SYAMKUMAR
SRI.SOORAJ T.ELENJICKAL
SMT.HELEN P.A.
ARUN ROY
SRI.SHAHIR SHOWKATH ALI
THIS TRANSFER PETITION (C) HAVING COME UP FOR ADMISSION
ON 19.7.2021, ALONG WITH Tr.P(C).293/2020 Tr.P(Crl).33/2020,
THE COURT ON 11.08.2021 DELIVERED THE FOLLOWING:
TrPC.332/19 &
connected cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
TR.P(C) NO. 293 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 309/2019 OF FAMILY COURT,
MALAPPURAM,
PETITIONER/S:
S.ANIL
AGED 49 YEARS
S/O.SANKARAN NAIR, ADVOCATE PUZHAVATH KARA, HOUSE,
CHANGANASSERY.P.O., KOTTAYAM-686101.
BY ADVS.
C.R.SYAMKUMAR
SRI.SOORAJ T.ELENJICKAL
SRI.P.A.MOHAMMED SHAH
SRI.K.ARJUN VENUGOPAL
SHRI.ASWIN KUMAR M J
SMT.HELEN P.A.
RESPONDENT/S:
1 K.V.SABITHA,
D/O.LATE GANGADHARAN NAIR, AGED 46 YEARS, KOLOTH
HOUSE, NILAMBUR.P.O., MALAPPURAM, NOW PERMANENTLY
AT C.S.ACADEMY SCHOOL, VALLIPURATHAN.P.O.,
VALLIPURATHANPALAYAM VILLAGE, ERODE TALUK, ERODE
DISTRICT, TAMILANDU-638112.
2 GAUTHAM
AGED 20 YEARS
S/O. ANIL, KOLOTH HOUSE, NILAMBUR.P.O., MALAPPURAM,
NOW PERMANENTLY AT C/O. SABITHA, C.S.ACADEMY
SCHOOL, VALLIPURATHAN.P.O., VALLIPURATHANPALAYAM
VILLAGE, ERODE TALUK, ERODE DISTRICT, TAMILANDU-
638112.
3 NIRANJANA (MINOR)
TrPC.332/19 &
connected cases 3
AGED 13 YEARS
D/O. ANIL, KOLOTH HOUSE, NILAMBUR.P.O., MALAPPURAM,
NOW PERMANENTLY AT C/O. SABITHA, C.S.ACADEMY
SCHOOL, VALLIPURATHAN.P.O., VALLIPURATHANPALAYAM
VILLAGE, ERODE TALUK, ERODE DISTRICT, TAMILANDU-
638112, REPRESENTED BY HER MOTHER K.V. SABITHA.
BY ADVS.
SRI.P.SAMSUDIN
SRI.M.ANUROOP
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.7.2021, ALONG WITH Tr.P(C).332/2019 AND
CONNECTED CASES, THE COURT ON 11.08.2021 DELIVERED THE
FOLLOWING:
TrPC.332/19 &
connected cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
TR.P(CRL.) NO. 33 OF 2020
AGAINST THE ORDER/JUDGMENT IN MC 153/2019 OF FAMILY COURT,
MALAPPURAM, MALAPPURAM
PETITIONER/S:
S. ANIL
AGED 49 YEARS
S/O. SANKARAN NAIR, ADVOCATE, GOPI SADANAM,
PUZHAVATH KARA, CHANGANASSERY P. O., KOTTAYAM - 686
101.
BY ADVS.
C.R.SYAMKUMAR
SOORAJ T.ELENJICKAL
P.A.MOHAMMED SHAH
K.ARJUN VENUGOPAL
ASWIN KUMAR M J
HELEN P.A.
RESPONDENT/S:
1 K. V. SABITHA
AGED 46 YEARS
D/O. LATE GANGADHARAN NAIR, KOLOTH HOUSE, NILAMBUR
P. O., MALAPPURAM, NOW PERMANENTLY AT C. S. ACADEMY
SCHOOL, VALLIPURATHAN P. O., VALLIPURATHANPALAYAM
VILLAGE, ERODE TALUK, ERODE DISTRICT, TAMILNADU -
638112.
2 NIRANJANA (MINOR)
AGED 14 YEARS
D/O. ANIL, KOLOTH HOUSE, NILAMBUR P. O.,
MALAPPURAM, NOW PERMANENTLY AT C/O. K. V. SABITHA,
C. S. ACADEMY SCHOOL, VALLIPURATHAN P. O.,
VALLIPURATHANPALAYAM VILLAGE, ERODE TALUK, ERODE
DISTRICT, TAMILNADU - 638112., REPRESENTED BY HER
TrPC.332/19 &
connected cases 5
MOTHER K. V. SABITHA.
BY ADVS.
SRI.P.SAMSUDIN
SRI.M.ANUROOP
THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 19.7.2021, ALONG WITH Tr.P(C).332/2019 AND
CONNECTED CASES, THE COURT ON 11.08.2021 DELIVERED THE
FOLLOWING:
TrPC.332/19 &
connected cases 6
V.G.ARUN, J.
-----------------------------------------------
TrP(C)No.332 of 2019, TrP(C).293 of 2020 and TrP(Crl).33 of 2020
-----------------------------------------------
Dated this the 11th day of August, 2021
ORDER
The spouses are at loggerheads and have resorted to legal
remedies. The wife, who is the petitioner in Tr.P(C) No.332 of 2019,
seeks transfer of O.P.No.25 of 2019 filed by the husband before the
Family Court, Thrissur to the Family Court, Malappuram. The
husband has filed Tr.P(Crl) No.33 of 2020 and TrP(C).No.293 of
2020, seeking transfer of M.C.No.153 of 2019 and O.P.No.309 of
2019 filed by the wife, from the Family Court, Malappuram to the
Family Court, Thrissur. O.P.No.25 of 2019 is filed by the husband
seeking divorce, M.C.No.153 of 2019 by the wife, seeking
maintenance for the minor second child born in the wedlock and
O.P.No.309 of 2019, claiming past maintenance for the elder child.
2. The wife seeks transfer pointing out the inconvenience
faced by her, by being compelled to conduct cases before two
Family Courts and the difficulty in commuting from Malappuram to
Thrissur. The husband seeks transfer on the premise that the
Family Court, Malappuram is not having jurisdiction to try the cases
TrPC.332/19 &
filed by the wife, as no part of the cause of action has arisen within
the jurisdiction of the said court. According to the husband, the
wife and children are permanently residing at Erode, where she is
employed as a teacher. Hence, as far as the wife is concerned, she
will not be put to any inconvenience by her cases being transferred
to the Family Court, Thrissur.
3. Sri.C.R.Syamkumar, learned Counsel appearing for the
husband submitted that the wife is residing at Erode permanently
and her residential address shown in the cases filed by her before
the Family Court, Malappuram and in the transfer petitions are not
correct. That, the Nilambur address shown by her is that of a
relative. Hence, the Family Court, Malappuram has no jurisdiction
to try the cases filed by the wife. It is pointed out that the husband
has filed his original petition before the Family Court, Thrissur since
the marriage was conducted at the Sreekrishna Temple,
Guruvayur. If the husband's intention was to cause difficulties to
the wife, he could have filed the original petition before the Family
Court, Ettumanoor, since the spouses had last resided together at
Changanassery.
4. Sri.P.Samsudin, learned Counsel appearing for the wife
countered the allegation that the address of the wife shown in the
TrPC.332/19 &
cases filed by her is incorrect and she has permanently shifted her
residence from Nilambur. It is admitted that the wife is no longer
residing at her family house in Nilambur and is temporarily residing
at Erode, in connection with her employment. It is asserted that
the wife's mother and sister are residing in Nilambur as evidenced
by Annexures R1(a) to R1(d) and therefore, she has filed the cases
before the Family Court, Malappuram. It is contended that
territorial jurisdiction is not a parameter for transfer under Section
24 CPC and the relevant consideration is the competence of the
transferee court. The proposition laid down in the decisions of the
Supreme Court that in transfer cases arising out of matrimonial
disputes, convenience of the wife should be preferred over that of
the husband is relied upon.
5. The husband's original petition is for a decree of dissolution
of marriage under Section 13 and 13(1b) of the Hindu Marriage Act.
As per Section 19 of the Hindu Marriage Act, petitions under the
Act can be presented to the District Court within the local limits of
whose ordinary original civil jurisdiction; (i) the marriage was
solemnised or (ii) the respondent, at the time of presentation of the
petition, resides or (iii) the parties to the marriage last resided
together. Here, the marriage was solemnised at Guruvayoor and
TrPC.332/19 &
the parties had last resided together at Changanassery. The wife
has no case that she was residing at Nilambur, when the original
petition was presented by the husband. Hence, the original petition
had to be filed either before the Family Court at Thrissur or
Kottayam. It is true that the Honourable Supreme Court has in a
plethora of decisions held that in transfer petitions arising out of
matrimonial disputes, convenience of the wife should be preferred
over that of the husband. But, in Anindhita Das v. Srijit Das
[(2006)9 SCC 197], the Apex Court took note of the fact that
leniency shown by courts are being misused by the women and
hence, each transfer case should be decided on merits. In the light
of the precedents, the question to be considered is whether the
original petition is liable to be transferred to suit the convenience
of the wife. The answer to the question is available from the
Division Bench decision in Divya J Nair v. S.K.Sreekanth [2018
(4) KHC 520] wherein it has been held as under:
"21. ....Convenience of a party will not confer
jurisdiction on a Court. Considerations of convenience
would be relevant only when more than one Court is
having the jurisdiction to try the case."
6. Even though competence of the transferee court is not
dependent on its jurisdiction alone, transfer of a case from the
TrPC.332/19 &
jurisdictional court to a court without jurisdiction cannot be made
to suit the convenience of the wife. For the aforementioned reason,
the transfer petition filed by the wife is liable to be dismissed.
7. The husband is seeking transfer of the cases filed by the
wife contending that the Family Court, Malappuram lacks
jurisdiction. As far as the maintenance case is concerned, it is
pertinent to note that as per Section 126 Cr.P.C, proceedings under
Section 125 can be taken against any person in any district (a)
where he is residing; or (b) where he or his wife resides; or (c)
where he last resided with his wife. Interpreting the provision, the
Honourable Supreme Court in Darsan Kumari v. Surinder
Kumar [1995 Suppl (4) SCC 137] has held that the section does
not require permanent residence at a particular place. Even a
temporary residence, so long as it is not casual, is sufficient to
confer jurisdiction on the Magistrate. It is the specific case of the
wife that her mother and sister are residing at Nilambur and she
resides with them whenever she comes down for contesting the
case. Indisputably , the wife's parental house was at Nilambur and
that house being no longer in existence, she has opted to stay with
her mother whenever she is in Nilambur. The wife has retained her
Nilambur address in all identification documents. Her residence at
TrPC.332/19 &
Erode is only temporary. Therefore, for the reason that the wife's
family house at Nilambur is not in existence now, her residence at
Nilambur cannot be termed as casual. As far as the original petition
claiming past maintenance for the minor child is concerned, it
cannot be held that no part of the cause of action had arisen at
Nilambur, since the child was at Nilambur before shifting to Erode.
Therefore, the contention that, as regards the maintenance case
and the original petition, the Family Court, Malappuram has no
jurisdiction is liable to be rejected. In any event, the Family Court
at Thrissur does not have the jurisdiction to try those cases. Hence,
the transfer petitions filed by the husband are also liable to be
dismissed.
In the result, TrP(C)No.332 of 2019, TrP(C).293 of 2020 and
TrP(Crl).33 of 2020 are dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
TrPC.332/19 &
APPENDIX OF TR.P(C) 293/2020
PETITIONER ANNEXURE
ANNEXURE A1 TRUE COPY OF O.P.309/2019 OF THE FAMILY
COURT, MALAPPURAM.
ANNEXURE A2 TRUE COPY OF O.P.25/2019 OF THE FAMILY
COURT, THRISSUR.
ANNEXURE A3 TRUE COPY OF M.C.153/2019 OF THE FAMILY
COURT, MALAPPURAM.
ANNEXURE A4 PHOTO COPY OF RETURNED COVER ISSUED TO
THE 1ST RESPONDENT.
ANNEXURE A5 PHOTOCOPY OF THE IDENTITY CARD OF THE 1ST
RESPONDENT.
TrPC.332/19 &
APPENDIX OF TR.P(CRL.) 33/2020
PETITIONER ANNEXURE
ANNEXURE A1 TRUE COPY OF M.C.153/2019 OF THE FAMILY
COURT, MALAPPURAM.
ANNEXURE A2 TRUE COPY OF O.P.25/2019 OF THE FAMILY
COURT, THRISSUR.
ANNEXURE A3 TRUE COPY OF O.P.309/2019 OF THE FAMILY
COURT, MALAPPURAM.
ANNEXURE A4 PHOTOCOPY OF THE RETURNED COVER ISSUED TO
THE 1ST RESPONDENT.
ANNEXURE A5 PHOTOCOPY OF THE IDENTITY CARD OF THE 1ST
RESPONDENT.
TrPC.332/19 &
APPENDIX OF TR.P(C) 332/2019
PETITIONER ANNEXURE
ANNEXURE A1 TRUE COPY OF THE MEMORANDUM IN
O.P.NO.25/2019 ON THE FILES OF THE FAMILY
COURT, THRISSUR.
ANNEXURE A2 TRUE COPY OF THE MEMORANDUM IN
O.P.NO.309/2019 ON THE FILES OF FAMILY
COURT, MALAPPURAM.
ANNEXURE A3 TRUE COPY OF THE MEMORANDUM IN MC
153/2019 ON THE FILES OF FAMILY COURT,
MALAPPURAM.
