Kerala High Court

Lalitha vs Ambily R.B on 19 February, 2021

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                    THE HONOURABLE MR. JUSTICE A.HARIPRASAD
                                         &
                 THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

           FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                Tr.Appeal(C).No.11 OF 2020 IN Tr.P(C). 854/2019

       AGAINST THE ORDER/JUDGMENT IN OP 1217/2019 OF FAMILY COURT,

                                  PATHANAMTHITTA

 AGAINST THE ORDER/JUDGMENT IN Tr.P(C) 854/2019 OF HIGH COURT OF KERALA

APPELLANT/S:

       1         LALITHA
                 AGED 62 YEARS
                 W/O.CHANDRAN, ARADHANA, MANAKKARA, SASTHAMCOTTA,
                 KUNNATHOOR TALUK, KOLLAM

       2         SURYA
                 AGED 30 YEARS
                 D/O.CHANDRAN ARADHANA, MANAKKARA, SASTHAMCOTTA, KUNNATHOOR
                 TALUK, KOLLAM

                 BY ADVS.
                 SRI.ARUN BABU
                 SRI.C.S.SUMESH

RESPONDENT/S:
       1         AMBILY R.B.
                 AGED 34 YEARS
                 D/O.RAJAMMA, MUNJARAVADAKKATHIL, PAZHAKULAM WEST MURI,
                 PAZHAKULAM.P.O, PALLICKAL VILLAGE, ADOOR TALUK,
                 PATHANAMTHITTA DISTRICT FORM ARADHANA, MANAKKARA,
                 SATHAMCOTTA, KUNATHOOR TALUK, KOLLAM-690521

       2         LATHEESH CHANDRAN
                 AGED 39 YEARS
                 S/O.CHANDRAN ARADHANA, MANAKKARA, SASTHAMCOTTA, KUNNATHOOR
                 TALUK, KOLLAM-690521
                 R1 BY ADV. SRI.M.KIRANLAL
                 R1 BY ADV. SRI.MANU RAMACHANDRAN
                 R1 BY ADV. SRI.R.RAJESH (VARKALA)
                 R1 BY ADV. SRI.T.S.SARATH
                 R1 BY ADV. SHRI.SAMEER M NAIR

      THIS   TRANSFER  APPEAL(CIVIL)   HAVING  BEEN   FINALLY       HEARD   ON
11.02.2021, THE COURT ON 19.2.2021 DELIVERED THE FOLLOWING:
 Tr.Appeal (C) No.11 of 2020            2




            A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ
                  ----------------------------------
                 Tr.Appeal (Civil) No. 11 of 2020
                      --------------------------------
             Dated this the 19th day of February, 2021


                               JUDGMENT

P.V.KUNHIKRISHNAN, J.

This appeal is filed against the order dated 06.03.2020 in

Tr.P.(c) No.854/2019. The appellants are the 2 nd and 3rd

respondents in O.P. No.1217/2019 on the file of the Family Court,

Pathanamthitta. The first appellant is the mother of the 2 nd

appellant and the 2nd respondent herein. The 1st respondent is the

wife of the 2nd respondent. The 1st respondent filed O.P.

No.1217/2019 before the Family Court, Pathanamthitta for

recovery of the value of her gold and share of properties, which

was allegedly misappropriated by the appellants and the 2 nd

respondent. The 1st respondent is employed as a court staff at

Adoor in the territorial jurisdiction of Pathanamthitta Family

Court. The 2nd respondent married the 1st respondent on 12.1.2012.

A girl child was born in the of wedlock and s he is now in

the custody of the 1st respondent. According to the appellants, the

1st respondent deserted her husband and left her matrimonial

home on 15.11.2018. The 2nd respondent then filed OP(HMA)

No.543/2019 on 04.07.2019 before the Family Court, Chavara

seeking divorce.

2. On receiving notice in the above divorce proceedings,

it is alleged that the 1st respondent with the aid of her brother

working in the Police Department foisted a case against the

husband alleging dowry harassment. When there was a threat on

26.8.2019 that the 1st respondent would forcefully trespass into

the residential house of the 1 st appellant, the 1st appellant filed

O.P. No. 727/2019 on 31.08.2019 before the Family Court,

Chavara. The 1st respondent also filed M.C.No. 23/2019 before the

Judicial First Class Magistrate Court, Sasthamcotta seeking a

residence order, but the learned Magistrate refused to grant the

residence order. Thereafter on 15.11.2019, the 1 st respondent

filed O.P. No.1217/2019 seeking recovery of money to the tune of

Rs.31,89,000/- on the ground that the same was the value of gold

and her share alleged to be misappropriated by the appellants

and the 2nd respondent.

3. It is submitted by the appellants that the 1 st appellant

is aged 62 and is suffering from serious old age ailments and

hence, she is not able to travel to Pathanamthitta. It is also

submitted that the 2nd appellant has got small kids and she is also

not in a position to travel up to Pathanamthitta. The husband of

the 2nd appellant is out of station in connection with his job.

Moreover, it is also submitted by the appellants that they are not

having the financial capacity to conduct the case by travelling a

distance of about 30 km to Pathanamthitta. There is no direct bus

service to Pathanamthitta from the residence of the appellants.

Hence, the appellants filed a transfer petition before this Court to

transfer O.P.No.1217/2019 pending before the Family Court,

Pathanamthitta to the Family Court, Chavara.

4. Along with the above transfer petition, two other

transfer petitions were also considered. Tr.P (C) Nos. 58/2020 and

67/2020 were filed by the wife, who is the 1 st respondent herein

for transferring O.P.No.543/2019 and O.P.No.727/2019 on the file

of the Family Court, Chavara to the Family Court, Pathanamthitta.

All the three transfer petitions were considered together and the

learned single Judge allowed transfer petition (C) Nos.58/2020

and 67/2020. But Tr.P.(C.) No. 854/2019 filed by the appellants

was dismissed. Aggrieved by the same, this transfer appeal is

filed.

5. Heard the counsel for the appellant and the counsel for

the respondents.

6. The counsel for the appellants submitted that the 1 st

appellant is an aged lady and is not in a position to travel from

her place at Sasthamcotta to Pathanamthitta to conduct

O.P.No.1217/2019. According to the appellants, the 2 nd

respondent, who is the son of the 1 st appellant is not in good

terms with them. The counsel submitted that O.P.No.1217/2019

was filed after the filing of the OP (HMA) No.543/2019 and

O.P.No.727/2019 before the Family Court, Chavara. The intention

of the 1st respondent is only to harass the appellants. According to

the appellants, the 1st respondent is employed at Adoor and her

child is with her parents. The counsel submitted that as far as the

2nd appellant is concerned, her husband is in Gulf, and 2 small

kids are there with the 2nd appellant. The 1st appellant is facing

old age illness. In such circumstances, the appellants are not in a

position to travel from their residence at Kottarakkara to

Pathanamthitta to conduct the case.

7. The counsel for the 1 st respondent submitted that she

has to look after her child and there is no direct bus from her

place of residence to Chavara. The counsel submitted that if the

case is transferred to Family Court, Chavara, there will be a lot

of inconvenience to the 1st respondent. The 1st respondent

supported the impugned order in this appeal.

8. This transfer appeal (C) came up for consideration

along with transfer appeal (C) No.10/2020 on 11.2.2021. The

transfer appeal (C) No.10/2020 was filed against the order dated

6.3.2020 in Tr.P.C. no.67/2020 by which O.P.No.727/2019 on the

file of the Family Court, Chavara is transferred to Pathanamthitta.

The counsel for the appellants submitted on 11.2.2021 that O.P.

No. 727/2019 is already withdrawn and transfer appeal (C) No.

10/2020 has become infructuous. Accordingly, transfer appeal (C)

No. 10/2020 is dismissed as infructuous. The counsel also

submitted that the divorce petition is also withdrawn from the

Family Court. Therefore, what remains is only O.P. No.1217/2019

now pending before the Family Court, Pathanamthitta.

9. The learned single Judge dismissed the transfer

petition of the appellants to transfer O.P.No.1217/2019 from

Family Court, Pathanamthitta to the Family Court, Chavara

mainly for the reason that the 1 st respondent is employed at

Adoor and she has got a child. The learned single Judge declined

the transfer to protect the interest of the child, who is admittedly

with the 1st respondent.

10. The main contention of the appellants is that the

learned single Judge erred in not considering the comparative

hardship of the parties involved in the litigation. According to the

appellants, the learned single Judge only considered the fact that

the 1st respondent-wife is having a child now residing with her.

But the counsel submitted that in the connected transfer petition,

the 1st respondent admitted that the child is studying at Kendriya

Vidyalaya, Adoor. According to the appellants, the child is with

the parents of the 1st respondent. The 1st respondent only used to

occasionally reside at her house at Pazhakulam where her parents

are residing with the child. Therefore, the appellants contended

that since the child is with the grandparents, there is no difficulty

to the 1st respondent to attend the Family Court at Chavara. The

counsel also submitted that in the other two cases which were

pending before the Family Court, Chavara, the 1 st respondent

regularly appeared and she participated in the mediation also.

The appellants contend that the 1st respondent is an employee in

court and she is a person who regularly travels to her workplace.

The sum and substance of the argument is that when comparing

the 1st respondent's case, the 2 nd appellant herein also has two

children and the younger one is less than one year old. This

aspect is not considered by the learned single Judge.

11. According to us, there is some force in this argument.

The main ground to reject the transfer petition by the learned

single Judge is to protect the interest of the child of the 1 st

respondent. From the pleadings of the 1 st respondent, it has to be

presumed that the child is with her parents. Moreover, the 1 st

respondent is working as a civil judicial subordinate staff. The 1 st

appellant is a widow and a senior citizen. It is also to be noted

that the first litigation was instituted by the 1 st appellant at

Chavara seeking an injunction. The 1 st respondent herein

appeared before the Family Court, Chavara, and contested the

matter after filing an objection to the said proceedings. In such

circumstances, there will not be any difficulty for the 1 st

respondent to participate in the proceedings, if the case is

transferred to the Family Court, Chavara. The 1 st appellant is an

old lady and the 2nd appellant is the daughter of the 1 st appellant.

There are two small kids to the 2 nd appellant. There can be a

direction to the lower court not to insist on the personal

appearance of the 1st respondent on all days except, the days on

which her appearance is inevitable. The 1st respondent can be

allowed to appear through counsel. In the facts and

circumstances of the case, according to us, the learned single

judge erred in dismissing the transfer petition.

Therefore, this transfer appeal is allowed in the following

manner :

1) The order dated 6.3.2020 in Tr.P.(C) No. 854/2019 is set aside.

2) O.P.No. 1217/2019 pending before the Family Court, Pathanamthitta is transferred to Family Court, Chavara. The case records shall be transmitted to the transferee court, forthwith.

3) The transferee court shall not insist on the personal appearance of the 1st respondent on all posting days except, on the dates on which her personal appearance is inevitable. On all other posting dates, the transferee court will allow the 1 st respondent to appear through counsel.

4) The parties shall appear before the transferee court on 8.3.2021. The transferee Court will take every endeavour to dispose of the case as expeditiously as possible.