Kerala High Court
Vinu Varghese vs Dyna Mary Aniyan on 6 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
TR.APPEAL(C) NO. 3 OF 2021
AGAINST THE ORDER IN Tr.P(C)NO.327/2020 OF HIGH COURT OF KERALA,
ERNAKULAM
APPELLANTS/PETITIONERS/RESPONDENTS:
1 VINU VARGHESE,
AGED 27 YEARS, S/O. PAPPALIL YACOB VARGHESE,
PAPPALIL VEEDU, MANNAMKARA,
KOTTUVALLY VILLAGE, PARAVOOR TALUK,
ERNAKULAM DISTRICT, PIN - 683520.
2 P. Y. VARGHESE,
AGED 55 YEARS, S/O. YACOB VARGHESE,
PAPPALIL VEEDU, MANNAMKARA, KOTTUVALLY VILLAGE,
PARAVOOR TALUK, ERNAKULAM DISTRICT, PIN - 683520.
3 MARY VARGHESE,
AGED 52 YEARS, W/O. P. Y. VARGHESE,
PAPPALIL VEEDU,MANNAMKARA, KOTTUVALLY VILLAGE,
PARAVOOR TALUK, ERNAKULAM DISTRICT, PIN - 683520.
BY ADVS.SRI.GEORGIE SIMON
SRI.BASIL CHANDY VAVACHAN
SMT.SANDHYA K.C.
RESPONDENT/RESPONDENT/PETITIONER:
DYNA MARY ANIYAN,
AGED 24 YEARS, D/O. SUJA ANIYAN,
SANKEERTHANAM, CHOORAKODE MURI, P. O.,
ERATHU, ERATHU VILLAGE, ADOOR TALUK,
PATHANAMTHITTA DISTRICT - 691551.
THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2021, ALONG WITH Tr.Appeal(C)NO.6/2021, 5/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
TR.APPEAL(C) NO. 4 OF 2021
AGAINST THE ORDER/JUDGMENT IN Tr.P(C) 325/2020 OF HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT/PETITIONER/RESPONDENT:
VINU VARGHESE,
AGED 27 YEARS, S/O. PAPPALIL YACOB VARGHESE,
PAPPALIL VEEDU, MANNAMKARA, KOTTUVALLY VILLAGE,
PARAVOOR TALUK, ERNAKULAM DISTRICT, PIN-683 520
BY ADVS.
GEORGIE SIMON
BASIL CHANDY VAVACHAN
SANDHYA K.C.
RESPONDENT/RESPONDENT/PETITIONER:
DYNA MARY ANIYAN,
AGED 24 YEARS, D/O. SUJA ANIYAN,
SANKEERTHANAM, CHOORAKODE MURI,
P.O. ERATHU , ERATHU VILLAGE, ADOOR TALUK,
PATHANAMTHITTA DISTRICT-691 551.
THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION
ON 06.07.2021, ALONG WITH Tr.Appeal(C).3/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
TR.APPEAL(C) NO. 5 OF 2021
AGAINST THE ORDER IN Tr.P(C) NO.270/2020 OF HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT/RESPONDENT/PETITIONER:
VINU VARGHESE,
AGED 27 YEARS, S/O.PAPPALI YACOB VARGHESE,
PAPPALI VEEDU, MANNAMKARA, KOTTUVALLY VILLAGE,
PARAVOOR TALUK, ERNAKULAM DISTRICT, PIN-683 520.
BY ADVS.
GEORGIE SIMON
BASIL CHANDY VAVACHAN
SANDHYA K.C.
RESPONDENT/PETITIONER/RESPONDENT:
DYNA MARY ANIYAN,
AGED 24 YEARS, D/O.SUJA ANIYAN,
SANKEERTHANAM, CHOORAKODE MURI,
P.O.ERATHU, ERATHU VILLAGE, ADOOR TALUK,
PATHANAMTHITTA DISTRICT-691 551.
THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION
ON 06.07.2021, ALONG WITH Tr.Appeal(C).3/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
TR.APPEAL(C) NO. 6 OF 2021
AGAINST THE ORDER IN Tr.P(C) NO.269/2020 OF HIGH COURT OF
KERALA, ERNAKULAM
APPELLANT/RESPONDENT NO.1/PETITIONER:
VINU VARGHESE, AGED 27 YEARS,S/O.PAPPALIL YACOB VARGHESE,
PAPPALIL VEEDU, MANNAMKARA,
KOTTUVALLY VILLAGE, PARAVOOR TALUK,
ERNAKULAM DISTRICT, PIN-683 520.
BY ADVS.GEORGIE SIMON
BASIL CHANDY VAVACHAN
SANDHYA K.C., TRESA AUGUSTINE
RESPONDENTS/RESPONDENT NOS.2 & 3/RESPONDENTS 2 & 3:
1 DYNA MARY ANIYAN, AGED 24 YEARS, D/O.SUJA ANIYAN,
SANKEERTHANAM, CHOORAKODE MURI, P.O. ERATHU, ERATHU
VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT-691551.
2 ANIYANMON P.C,AGED 54 YEARS, F/O.DYNA MERRY VARGHESE,
SANGEERTHANAM, CHOORAKODE MURI P.O, ERATHU VILLAGE,
ADOOR TALUK, PATHANAMTHITTA - 691 551
3 SUJA ANIYAN, AGED 52 YEARS, M/O.DYNA MERRY VARGHESE,
SANGEERTHANA, CHOORAKODE MURI P.O, ERATHU VILLAGE,
ADOOR TALUK, PATHANAMTHITTA - 691 551
THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2021, ALONG WITH Tr.Appeal(C)NO.3/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
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JUDGMENT
Anil K. Narendran, J.
These Transfer Appeals are filed under Section 5 of the Kerala
High Court Act, 1958 challenging the common order dated
10.03.2021 of the learned Single Judge in Tr.P.(C) Nos.269 of 2020,
270 of 2020, 325 of 2020 and 327 of 2020. The 1 st appellant in
Transfer Appeal No.3 of 2021 and the sole respondent in that appeal
are husband and wife. The 2 nd and 3rd appellants in that appeal are
his parents. The husband is the sole appellant and the wife is the
sole respondent in Transfer Appeal Nos.4 and 5 of 2021. The
husband is the sole appellant and the wife is the 1 st respondent in
Transfer Appeal No.6 of 2021. The 2nd and 3rd respondents in that
appeal are her parents. Tr.P(C) No.269 of 2020 is one filed by the
wife seeking transfer of O.P.No.757 of 2020 pending before the
Family Court, Ernakulam, to the Family Court, Pathanamthitta, which
is one filed by the husband under Section 32 of the Divorce Act, read
with Section 7, Explanation (c) of the Family Courts Act, 1984
against the wife and her parents seeking a decree directing the
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
parents to allow their daughter to reside with her husband as legally
wedded wife and to go abroad with him, as already promised. The
said original petition filed by the husband is one dated 19.05.2020, in
which the Family Court, Ernakulam, issued notice on 04.06.2020 with
hearing date as 10.07.2020. Tr.P.(C)No.270 of 2020 is one filed by
the wife seeking transfer of O.P.No.756 of 2020 pending before the
Family Court, Ernakulam, to the Family Court, Pathanamthitta, which
is one filed by the husband against the wife, under Section 32 of the
Divorce Act, read with Explanation (a) of the Family Courts Act,
1984, seeking a decree of restitution of conjugal rights, directing the
respondent wife to come and reside with him, exercising her
matrimonial duties and obligations. The said original petition filed by
the husband is also one dated 19.05.2020, in which the Family
Court, Ernakulam, issued notice on 04.06.2020 with hearing date as
10.07.2020.
2. Even prior to the filing of O.P.Nos.756 of 2020 and 757 of
2020 by the husband before the Family Court, Ernakulam, the wife
filed O.P.No.255 of 2020 before the Family Court, Pathanamthitta, on
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
16.03.2020, under Section 7(1) of the Family Courts Act, against the
husband and his parents for realisation of patrimony and gold
ornaments. In that original petition, the Family Court issued notice
on 16.03.2020 and posted the matter on 05.05.2020 for return of
notice. The wife has also filed O.P.No.254 of 2020 against the
husband under Section 10(x) of the Indian Divorce Act seeking a
decree of divorce. The said original petition is also one filed on
16.03.2020 in which the Family Court issued notice and posted the
matter to 05.05.2020 for return of notice.
3. Seeking transfer of the two original petitions filed by the
husband before the Family Court, Pathanamthitta, the wife filed Tr.P.
(C) Nos.269 of 2020 and 290 of 2020 before this Court on
02.07.2020. Thereafter, the husband filed Tr.P.(C) Nos.325 of 2020
and 327 of 2020 before this Court on 12.08.2020, seeking transfer of
the other two original petitions pending before the Family Court,
Pathanamthitta, to the Family Court, Ernakulam. The learned Single
Judge by the common order dated 10.03.2021, which is impugned in
these Transfer Appeals, allowed Tr.P.(C)Nos.269 of 2020 and 270 of
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
2020 filed by the wife and dismissed Tr.P.(C)Nos.325 of 2020 and
327 of 2020 filed by the husband. Accordingly, O.P.Nos.756 of 2020
and 757 of 2020 filed by the husband, pending before the Family
Court, Ernakulam, were withdrawn and transferred to the Family
Court, Pathanamthitta, where O.P.Nos.254 of 2020 and 255 of 2020
filed by the wife are pending consideration.
4. Feeling aggrieved by the common order dated 10.03.2021
of the learned Single Judge in Tr.P.(C)Nos.269 of 2020 and
connected cases, the husband and his parents are before this Court
in these Appeals.
5. Heard the learned counsel for the appellants and also the
learned counsel for the respondents in these appeals.
6. The learned counsel for the appellants would contend that
the mother of the husband, who is a party to O.P.No.255 of 2020 on
the file of the Family Court, Pathanamthitta, is undergoing dialysis.
She is also having other health issues, who is not in a position to
travel all the way to the Family Court, Pathanamthitta, from her
place of residence at North Paravoor in Ernakulam District. Along
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
with the above Transfer Appeals, renal biopsy report dated
26.09.2014 of the mother of the husband, issued from Amritha
Institute of Medical Science and Research Centre, Kochi, is placed on
record. The Family Court, Pathanamthitta, is at a distance of 150
kilometers from North Paravoor. Since the parental home of the wife
is at Pathanamthitta, the learned Single Judge ought to have
transferred all the original petitions to the Family Court at
Ettumanoor, which will be convenient for both sides. The learned
counsel would also point out that in the transfer petitions filed by the
wife the number of original petition was erroneously shown.
7. The learned counsel for the respondents would submit
that the wife is employed in RM Education Solutions India Private
Limited, Technopark, Thiruvananthapuram. She is residing in her
parental home at Choorakode in Adoor Taluk, which is situated within
the limits of Family Court, Pathanamthitta. Her parental home is at a
distance of only 24 kms from that court. She is not in a position to
undertake a long journey of 131 kilometers from her parental home
to the Family Court, Ernakulam. Her work place is at a distance of
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
about 197 kilometers from the Family Court, Ernakulam. The transfer
of original petitions to the Family Court, Ettumanoor in Kottayam
district will place the wife in a very difficult situation, since she is
employed at Technopark, Thiruvananthapuram. The learned counsel
would also submit that due to an inadvertent mistake the number of
original petition was erroneously shown in the transfer petitions filed
by the wife.
8. Having considered the pleadings and materials on record
and also the submissions made by the learned counsel on both sides,
we find that the original petitions filed by the wife before the Family
Court, Pathanamthitta, as O.P.No.254 of 2020 and O.P.No.255 of
2020, seeking a decree of divorce and for realisation of patrimony
and gold ornaments, respectively, were filed on 16.03.2020 in which
the Family Court issued notice and posted the matter to 05.05.2020
for return of notice. It is thereafter that the husband filed O.P.No.756
of 2020 and 757 of 2020 before the Family Court, Ernakulam, on
19.05.2020 seeking a decree of restitution of conjugal rights and for
a decree directing the parents of his wife to allow her to reside with
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
him as legally wedded wife and go abroad with him, as promised.
9. Admittedly, the wife, who is aged 24 years, is working at
Technopark, Thiruvananthapuram, which is at a distance of about
197 kilometers from the Family Court, Ernakulam. She is residing in
her parental home at Choorakode in Adoor Taluk, which is at a
distance of only 24 kilometers from the Family Court,
Pathanamthitta. From that place she has to travel 131 kilometers to
the Family Court, Ernakulam. Since the wife is employed at
Technopark, Thiruvananthapuram, the transfer of original petitions to
the Family Court, Ettumanoor in Kottayam District, will place her in a
very difficult situation.
10. The parents of the husband are aged 54 years and 52
years respectively. In the impugned order dated 10.03.2021, the
learned Single Judge observed that, if the parents of the husband are
not in a position to attend the Family Court, Pathanamthitta, it would
be open to them to apply before that court for exemption from
personal appearance, which may be decided in accordance with law.
11. Relying on Annexure A renal biopsy report dated
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
26.09.2014, the learned counsel for the appellants would point out
that the mother of the husband is undergoing dialysis. She is also
having other health issues and as such, she is not in a position to
travel all the way to the Family Court, Pathanamthitta, from her
place of residence at North Paravoor.
12. In case the mother of the husband is undergoing dialysis
and is having other health issues, the appellants can certainly bring it
to the notice of the Family Court, Pathanamthitta by filing an
application for exemption from personal appearance, along with
medical records, in which event the court shall consider that request
favourably. Considering her health issues, her presence during
mediation talks can be insisted through video conferencing. During
trial her examination can be conducted either through video
conferencing or by deputing an Advocate Commissioner, at the
expense of the wife.
13. In the above circumstances, we find no reason to interfere
with the common order dated 10.03.2021 of the learned Single
Judge in Tr.P.(C).No.269 of 2020 and connected cases.
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
In the result, these appeals fail and they are accordingly
dismissed, subject to the observation contained hereinbefore at para
12 regarding exemption from personal appearance of the mother of
the appellant.
Sd/-
ANIL K.NARENDRAN
JUDGE
Sd/-
M.R.ANITHA
JUDGE
bpr
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
APPENDIX OF TR.APPEAL(C) 3/2021
APPELLANT'S ANNEXURE
Annexure A TRUE COPY OF MEDICAL CERTIFICATE DATED
26.09.2014.
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
APPENDIX OF TR.APPEAL(C) 4/2021
APPELLANT'S ANNEXURE
Annexure A TRUE COPY OF MEDICAL CERTIFICATE DATED
26.09.2014.
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
APPENDIX OF TR.APPEAL(C) 5/2021
APPELLANT'S ANNEXURE
Annexure A TRUE COPY OF MEDICAL CERTIFICATE DATED
26.09.2014.
TR.APPEAL(C)Nos.3, 4, 5 & 6 OF 2021
APPENDIX OF TR.APPEAL(C) 6/2021
APPELLANT'S ANNEXURE
Annexure A TRUE COPY OF MEDICAL CERTIFICATE DATED
26.09.2014.
