Mahesh S vs Jijimol
2021 Latest Caselaw 15607 Ker

              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 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
                       TR.APPEAL(C) NO. 2 OF 2021
        AGAINST THE ORDER DATED 18.11.2020 IN Tr.P(C) 211/2020
APPELLANT/RESPONDENT

            MAHESH S.
            AGED 37 YEARS
            S/O.V.SASIDHARAN, MANOJ BHAVAN, PUNALUR, ELAMPAL P.O.,
            KOLLAM DISTRICT, PINCODE-691322.
            BY ADVS.
            M.KIRANLAL
            SRI.MANU RAMACHANDRAN
            SRI.T.S.SARATH
            SRI.R.RAJESH (VARKALA)
            SHRI.SAMEER M NAIR


RESPONDENT/PETITIONER

            JIJIMOL
            AGED 31 YEARS
            D/O.JANARDHANAN, KOCHINAZHIKATHU, JIJITH BHAVANAM,
            KADAVOOR, PERINADU, KOLLAM DISTRICT-691601.


            BY ADV B.SURJITH



     THIS   TRANSFER   APPEAL(CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
08.07.2021, THE COURT ON 27.07.2021 DELIVERED THE FOLLOWING:
 Transfer Appeal(Civil)No.2 of 2021
                                        2


                                     JUDGMENT

M.R.Anitha, J.

The appellant, who is the respondent in Tr.P.(C).No.211 of

2020, has filed this Transfer Appeal aggrieved by the order of this

Court dated 18.11.2020, whereby O.P.(G&W) No.206 of 2020 on

the file of Family Court, Kollam was ordered to be transferred to

Family Court, Ernakulam. The said Transfer Petition is one filed by

the respondent, who is the wife of the appellant.

2. Tr.P.(C).No.211 of 2020 was disposed of along with Tr.P.

(C).No.311 of 2020 by a common order. Tr.P.(C).No.311 of 2020

was filed by the appellant seeking for transfer of O.P.No.705 of

2020 filed by the respondent/wife against the appellant under

Section 12 of Protection of Women from Domestic Violence Act,

2005 (in short PWDV Act) from Family Court, Ernakulam to Family

Court, Kollam. In O.P.No.705 of 2020 she has attributed various

acts of domestic violence against the appellant and sought for

protection order under Section 18 of the said Act. The respondent

also had filed M.C.No.67 of 2020 under Section 125 of the Code of

Criminal Procedure 1973 before the Family Court, Ernakulam, Transfer Appeal(Civil)No.2 of 2021

claiming maintenance. Further she had filed a complaint under

Sections 190(1) and 200 of the Code of Criminal Procedure, 1973

alleging the commission of offence under Sections 323, 352, 309,

498A, 454A read with 34 of the Indian Penal Code against the

appellant and others. The appellant on the other hand filed O.P.

(G&W).No.206 of 2020 for custody of the child and also O.P.(HMA)

No. 275 of 2020 before the Family Court, Kollam seeking for

divorce. By the common order dated 18.11.2020, the learned

Single Judge dismissed the Tr.P.(C)No. 331 of 2020 filed by the

appellant. The dismissal of Tr.P.(C) No.331 of 2020 is not under

challenge and that order has become final.

3. O.P.(G&W)No.206 of 2020 is filed by the appellant

seeking to appoint him as the legal guardian and custodian of the

minor child. According to the appellant, respondent and the minor

child are permanent residents of Kollam. Respondent obtained the

order of transfer of O.P.(G&W)No.206 of 2020 to Family Court,

Ernakulam, misleading the court that she is residing with the child

at Ernakulam. He placed reliance on Anindita Das v. Srijit Das

[(2006) 9 SCC 197] and would contend that leniency shown by Transfer Appeal(Civil)No.2 of 2021

the Court is being misused in filing the Transfer Petition without

merits.

4. On 16.02.2021, when the appeal came up for

admission the Court admitted the matter on file and the

respondent entered appearance through counsel. On 19.02.2021,

this Court granted stay of operation of the common order dated

18.11.2020 of the learned Single Judge, for a period of one

month. The said interim order, which was extended from time to

time, is still in force.

5. Heard the learned counsel for the appellant and also

the learned counsel for the respondent.

6. The learned Single Judge, in the common order in Tr.P.

(C).No.211 of 2020 and Tr.P.(C).No.331 of 2020, which were filed

by the appellant and respondent respectively, followed the law

laid down by the Apex Court in the decisions referred to therein

that, while ordering transfer of a case from one Court to another,

convenience of the women and children has to be given due

preference. Pendency of M.C.No.67 of 2020 and O.P.No.705 of

2020 before Family Court, Ernakulam and Crl.M.P.No.1192 of 2020 Transfer Appeal(Civil)No.2 of 2021

before Judicial First Class Magistrate Court-IX, Ernakulam, was

taken note of by the learned Single Judge. Further appellant's

occupation at Ernakulam, coupled with the fact that the parties

were residing together with child at Ernakulam prior to

separation, was also taken into account. The Court has also taken

note of the fact that there was nothing on record to show that the

child is living in Kollam and ultimately Tr.P.(C).No.211 of 2020 filed

by the respondent was allowed.

7. The main argument of the learned counsel for the

appellant is with regard to the conduct of the respondent in

furnishing a false address in Tr.P.(C)No.211 of 2020 filed by her,

in order to bring the matter within the jurisdiction of Family Court,

Ernakulam, though she and the child actually reside within the

jurisdiction of Family Court, Kollam.

8. The learned counsel for the respondent on the other

hand stick on to the stand that the respondent and child are

residing at Ernakulam. Her parents are old and are not in a

position to deal with litigation process. Earlier she had been

working at the Customer Care section in Asianet Broadcasting Transfer Appeal(Civil)No.2 of 2021

Office at Kalamassery. She is pursuing her studies at Ernakulam

and is also working at present as an Office Admin in a job

consultancy firm at Vyttila. Original of letter of employment

verification dated 16.3.2021 is produced as Annexure-R1, along

with the counter affidavit filed in the Transfer Appeal.

9. On 30.03.2021, after hearing both sides, this Court

passed an order directing the respondent to file an affidavit

stating her address and place of abode and whether the child is

permanently residing with her. The name and place of school in

which the child is attending online classes were also directed to be

made mention of within two weeks. That affidavit has been placed

on record on 22.06.2021 along with a memo filed by the

respondent.

10. The main argument of the learned counsel for the

appellant, as stated earlier, is with regard to the alleged

misrepresentation made by the respondent regarding her address

at Ernakulam, at the time of filing the Transfer Petition. His

specific case is that the respondent and child were residing within

the jurisdiction of Family Court, Kollam at the time of filing the Transfer Appeal(Civil)No.2 of 2021

Tr.P.(C).No.211 of 2020. No doubt, in custody matters the

jurisdiction of the Court is determined on the basis where the child

ordinarily resides, which in turn depends on the intention to make

that place ones ordinary abode.

11. In Ruchi Majoo v. Sanjeev Majoo [(2011) 6 SCC

479] the Apex Court held that, in cases arising out of proceedings

under the Guardians and Wards Act, the jurisdiction of the Court is

determined by whether the minor ordinarily resides within the

area on which the Court exercises such jurisdiction. There is thus

a significant difference between the jurisdictional facts relevant to

the exercise of powers by a writ Court on the one hand and a

Court under the Guardians and Wards Act on the other hand.

12. In Divya J. Nair v. S.K. Sreekanth [2018 (4) KLT

620] a Division Bench of this Court held that, the question as to

'ordinary residence' of a minor is always to be decided on the facts

and particulars of each case. The expression 'where the minor

ordinarily resides' excludes places to which the minor may be

removed at or about the time of the filing of the application for the

enforcement of the guardianship and custody of the minor. Where Transfer Appeal(Civil)No.2 of 2021

the application is filed soon after such removal, the place of such

removal has to be ignored for the purpose of determining the

jurisdiction of the court to entertain the application. The new

place, to which the minor may have gone or may have been

removed, can become the place of ordinary residence of the minor

only after the minor has settled down at that place for a

reasonably long period. Actual place of residence of the minor at

the time of filing the application does not necessarily determine

the jurisdiction of the court. Mere factual residence at a place at

the time of the proceeding is not sufficient to confer jurisdiction.

Ordinary residence means more than a temporary residence, even

though such residence is spread over a long period [See: Sarada

Nayar v. Vayankara Amma (1957 KLT 466)].

13. In the instant case, as admitted by the appellant, he

was residing along with his wife and child at Vennala, till

20.12.2019. The copy of rent deed produced as Annexure-R1

bears an endorsement that before the stipulated period of 11

months, on 15.01.2020, the appellant was evicted from the rented

building due to some reasons. The appellant filed O.P.(G.W) Transfer Appeal(Civil)No.2 of 2021

No.206 of 2020 on 07.02.2020, before Family Court Kollam. This

leads to an inference that soon after respondent left the company

of the appellant, the case was filed. There is no specific pleading

in the O.P.(G&W) that the ward is ordinarily residing within the

jurisdiction of Family Court, Kollam.

14. According to the learned counsel for the appellant, at

the time of filing Tr.P.(C) No.211 of 2020 the respondent has given

the address at Vennala, the rented house. But actually they had

vacated the house on 15.01.2020 itself, but in the Transfer

Petition filed in the month of March 2020, the respondent showed

her address at Vennala, which was an attempt to establish that

she is still residing within the jurisdiction of Family Court,

Ernakulam. Appellant relied on Annexure R1 rent deed produced

by the respondent, along with the counter affidavit in Tr.P.

(C)No.211 of 2020. The said document would show that the

parties last resided together within the jurisdiction of Family

Court, Ernakulam.

15. In Shibu S. v. Bibi K. Venu [2012 (1) KHC 563] a

Division Bench of this Court held that, under Section 19 of the Transfer Appeal(Civil)No.2 of 2021

Hindu Marriage Act, 1955, every petition filed under the Act is to

be presented before the District Court/Family Court within the

local limits of which the marriage was solemnised or the

respondent resides or the parties last resided together. By virtue

of amendment inserted on 23.12.2003 it is provided that when

the wife is the petitioner, the petition can be filed at the place

where she resides on the date of presentation of the petition. This,

apparently, is a provision for the benefit of the wife. Furthermore,

the Section also deals with the situation where the respondent is

residing outside the territories to which the Act extends or when

the respondent has not been heard of as being alive for a period

of 7 years or more by those persons who would naturally have

heard of him if he were alive. On the facts of the case, the

Division Bench found that, the petition filed by the appellant is on

the basis that the parties last resided together within the

jurisdiction of the Family Court, Kottarakkara. This is clearly

permissible having regard to clause (iii) of Section 19 of the Act. It

is also true that the petition could have been filed before the

Family Court at Kottayam being the place where the respondent Transfer Appeal(Civil)No.2 of 2021

resides. But the fact that the petition could have been filed at

Kottayam under clause (ii) of Section 19 does not have the effect

of the right given to a party to invoke clause (iii) of Section 19

being taken away.

16. Section 27 of the Protection of Women from Domestic

Violence Act, 2005 deals with jurisdiction. As per sub-section (1)

of Section 27, the Court of Judicial Magistrate of the First Class or

the Metropolitan Magistrate, as the case may be, within the local

limits of which (a) the person aggrieved permanently or

temporarily resides or carries on business or is employed; or (b)

the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen, shall be the competent Court to

grant a protection order and other orders under this Act and to try

offences under this Act. As per sub-section (2) of Section 27, any

order made under this Act shall be enforceable throughout India.

17. Section 9 of the Guardians and Wards Act, 1890 deals

with Court having jurisdiction to entertain application. As per sub-

section (1) of Section 9, if the application is with respect to the

guardianship of the person of the minor, it shall be made to the Transfer Appeal(Civil)No.2 of 2021

District Court having jurisdiction in the place where the minor

ordinarily resides. As per sub-section (2) of Section 9, if the

application is with respect to the guardianship of the property of

the minor, it may be made either to the District Court having

jurisdiction in the place where the minor ordinarily resides or to a

District Court having jurisdiction in a place where he has property.

As per sub-section (3) of Section 9, if an application with respect

to the guardianship of the property of a minor is made to a

District Court other than that having jurisdiction in the place

where the minor ordinarily resides, the Court may return the

application if in its opinion the application would be disposed of

more justly or conveniently by any other District Court having

jurisdiction.

18. In view of the provisions under Section 27(1)(c) of the

Protection of Women from Domestic Violence Act, 2005 the

respondent can file O.P.No.705 of 2020 at the place where she

resides at the time of filing the petition. Similarly, in view of the

provisions under Section 9(1) of the Guardians and Wards Act,

1890 the respondent can file O.P.(G&W) No.206 of 2020 before Transfer Appeal(Civil)No.2 of 2021

the Family Court having jurisdiction in the place where the minor

ordinarily resides. In the counter affidavit filed in this appeal and

also the affidavit dated 22.06.2021 filed consequent to the

direction of this Court dated 30.03.2021, the respondent has

categorically stated that she and her son had been residing in a

rented house, ie., 32/2166-A, Popular Road, Vaduthala, PIN - 682

023, along with her colleague. She is pursuing her studies and

also working as Office Admin in a Job Consultancy Firm at Vyttila.

She produced Annexure-R1 letter of employment verification from

the employer. In the affidavit dated 22.06.2021 she has stated

that presently she along with her child are residing at Aluva. The

child is studying in 2nd standard at St.Francis Xaviers LPS, Aluva.

During the last academic year, the child was in 1 st standard at

Sree Vidyadhiraja Public School, Anchalumoodu, Kollam. It is

argued by the learned counsel for the respondent that during the

last year the child was attending the classes online from the house

of her colleague at Vaduthala. As has been found by the learned

Single Judge, nothing could be produced by the appellant herein

to substantiate his contention that the child and respondent were Transfer Appeal(Civil)No.2 of 2021

residing at Kollam, while the Transfer Petition was filed. However,

we take notice of the solemn affirmation of the respondent in the

affidavit filed in support of Tr.P.(C).No.211 of 2020, without

mentioning her place of abode, which is a mandatory requirement

while swearing such an affidavit, as per Rule 74 of the Rules of the

High Court of Kerala, 1971. So also, in spite of specific direction to

file affidavit within two weeks from 18.03.2021 stating the place

of abode and the school where the ward is studying and attending

the online classes, the respondent filed the affidavit only on

22.06.2021. We strongly deprecate the conduct of the respondent

in this regard.

19. The affidavit sworn to by the respondent on 22.06.2021

would show her intention to continue to stay within the jurisdiction

of Family Court, Ernakulam since the ward has been admitted at

St.Francis Xaviers LPS, Aluva. More over, M.C.No.67 of 2020 filed

by the respondent under Section 125 of the Criminal Procedure

Code 1973 is pending before Family Court, Ernakulam.

Crl.M.P.No.1192 of 2020 filed under Section 190(1) and 200 of

CrPC. for reference under Section 156(3) is also filed before the Transfer Appeal(Civil)No.2 of 2021

Judicial First Class Magistrate Court, Ernakulam. It is not in

dispute that the appellant is working at Ernakulam, within the

jurisdiction of Family Court, Ernakulam. It is pointed out that O.P.

(HMA) No.275 of 2020 filed by the appellant is pending before the

Family Court, Kollam, which was not sought to be transferred by

the respondent. But that itself, in our opinion, is not a reason to

interfere with the order of transfer of O.P.(G&W) from Family

Court, Kollam to Family Court, Ernakulam. When a woman spouse

seeks for transfer of a case to a court where other proceedings are

initiated by her, the fact that she did not ask for transfer of one

another matter need not be weighed much, especially when the

case sought to be transferred is O.P.(G&W) and that too, when

child is ordinarily residing within the jurisdiction of the transferee

court.

20. In Anindita Das v. Srijit Das [(2006) 9 SCC 197], a

decision relied on by the learned counsel for the appellant, the

Apex Court was dealing with a case in which the transfer petition

has been filed by the wife on the ground that she has a small child

of six years. She has further claimed that she has no source of Transfer Appeal(Civil)No.2 of 2021

income and it is difficult for her to attend the Court at Delhi. She

has further claimed that she is not keeping good health.

Considering the fact that, on an average at least 10 to 15 transfer

petitions are on board of each court on each admission day, the

Apex Court observed that the leniency shown by the Court is

being misused by the women. On the facts of the case, the Apex

Court noticed the child is six years old and there are grandparents

available to look after the child. The respondent is willing to pay

all expenses for travel and stay of the petitioner and her

companion for every visit when the petitioner is required to attend

the court at Delhi. Thus, the ground that the petitioner has no

source of income is adequately met. Except for stating that the

petitioner's health is not good, no particulars were given. On the

ground that she is not able to come to Delhi to attend the court on

a particular date, it was observed that she can always apply for

exemption and her application will undoubtedly be considered on

its merit. In the above circumstances, the Apex Court dismissed

the transfer petition, holding that no ground for transfer has been

made out.

Transfer Appeal(Civil)No.2 of 2021

21. In Sumita Singh v. Kumar Sanjay and another

[(2001) 10 SCC 41] the Apex Court was dealing with a case in

which the wife filed transfer petition seeking transfer of

matrimonial proceedings filed by the husband against her in Ara,

Bhojpur to Delhi. It was her case that she is living and working in

Delhi and that, she would be unable to travel up and down from

Delhi to Ara, a distance of about 1,100 Kilometers from Delhi, to

defend the matrimonial proceedings. She has no one with whom

she can stay in Ara because her parents are residents of Gurgaon.

The learned counsel for the husband contended that the wife is an

educated woman who is doing very well and can, therefore, travel

to Ara while the husband is unemployed. The Apex Court allowed

the transfer petition, observing that it is the husband's suit

against the wife. It is the wife's convenience that, therefore, must

be looked at.

22. In the impugned order, the learned Single Judge

noticed that in the judgments of the Apex Court in Sumitha

Singh v. Kumar Sanjay and another [(2001) 10 SCC 41],

Mona Aresh Goel v. Aresh Satya Goel [(2000) 9 SCC 255], Transfer Appeal(Civil)No.2 of 2021

Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap

[(2016) 14 SCC 356], and Santhini v. Vijaya Venkatesh

[(2018) 1 SCC 1] wherein it was held that, it is the convenience

of the woman and children that has to be given due preference,

while ordering transfer of a case from one Court to another.

23. In the instant case, the respondent-wife is pursuing her

studies at Ernakulam, and the child is studying at a school and

living with the respondent, within the jurisdiction of Family Court,

Ernakulam, where three other proceedings are already pending

between the parties. So we do not find any justifiable reason to

interfere with the impugned order passed by the learned Single

Judge.

In the result, the appeal is found to be devoid of any merit

and accordingly dismissed. No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE

Sd/-

M.R. ANITHA Transfer Appeal(Civil)No.2 of 2021

JUDGE Mrcs/Shg