Jerrin James vs Maria Babu
2022 Latest Caselaw 6241 Ker

TR.P(C) Nos.722 & 805 OF 2021
                                    1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
     FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                        TR.P(C) NO. 805 OF 2021
            IN OP 882/2021 OF FAMILY COURT, MUVATTUPUZHA
PETITIONER/S:

            JERRIN JAMES
            AGED 31 YEARS
            AGED 31 YEARS, S/O JAMES.K.V KANNETH HOUSE,
            GANDHIPURAM , MARKET ROAD, TRIPUNITHURA.P.O,
            ERNAKULAM , KOCHI-682 301, REPRESENTED BY HIS POWER
            OF ATTORNEY HOLDER JAMES. K.V. KANNETH HOUSE
            GADHIPURAM, MARKET ROAD, TRIPUNITHURA.P.O,
            ERNAKULAM,KOCHI-682 301., PIN - 682301

            BY ADVS.
            M.DINESH
            PAUL MATHEW (PERUMPILLIL)



RESPONDENT/S:

MARIA BABU AGED 28 YEARS AGED 28 YEARS, D/O BABU . A.P. AVALAKOTTIL HOUSE, THIRUVANIYOOR.P.O, ERNAKULAM, PIN-682 308., PIN - 682308

BY ADVS.

C.DILIP ANUSHKA VIJAYAKUMAR(K/835/2019)

THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2022, ALONG WITH Tr.P(C).722/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) Nos.722 & 805 OF 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944 TR.P(C) NO. 722 OF 2021 IN OP 2330/2021 OF FAMILY COURT,ERNAKULAM PETITIONER/S:

MARIA BABU AGED 28 YEARS D/O BABU A.P, AVALAKOTTIL HOUSE, THIRUVANIYOOR P.O.ERNAKULAM DISTRICT, PIN-682 308

BY ADVS.

C.DILIP ANUSHKA VIJAYAKUMAR

RESPONDENT/S:

JERRIN JAMES, AGED 31 YEARS S/O JAMES K.V, KANNETH HOUSE, GANDHIPURAM, MARKET ROAD, TRIPUNITHURA P.O.ERNAKULAM, PIN-682 301, (PRESENTLY ABROAD) REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, MR JAMES K.V AGED 59 YEARS, S/O KK.VARGHESE, KANNETH HOUSE, GANDHIPURAM, MARKET ROAD, TRIPUNITHURA P.O.ERNAKULAM, PIN-682 301

BY ADVS.

PAUL MATHEW (PERUMPILLIL) M.DINESH

THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2022, ALONG WITH Tr.P(C).805/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) Nos.722 & 805 OF 2021

COMMON ORDER

As the transfer petitions are filed seeking transfer of

the proceedings instituted by both the husband and wife,

as against each other, they are being disposed of by this

common order. The parties are, for the sake of

convenience, referred to as per their status in Tr.P(C)

No.722/2021.

2. The petitioner wife has filed Tr.P(C) No.722/2021

under Section 24 of the Code of Civil Procedure, seeking

to transfer O.P.No.2330/2021 (Annexure-1) from the

Family Court, Ernakulam to the Family Court,

Muvattupuzha. The respondent husband has filed Tr.P(C)

No.805/2021, seeking to transfer OP No.882/2021

(Annexure-3) from the Family Court, Muvattupuzha to the

Family Court, Ernakulam.

3. The petitioner's case, in brief, in Tr.P(C)

No.722/2021 is that; she is the wife of the respondent. TR.P(C) Nos.722 & 805 OF 2021

They have a two year old son born in their wedlock. Due

to the estrangement between the couple, the respondent,

who is employed abroad, has filed Annexure-1, seeking

the permanent custody of their child. The petitioner has

filed O.P.No.882/2021 (Annexure-3) before the Family

Court, Muvattupuzha seeking a decree for declaration and

other consequential reliefs. She has also filed

M.C.No.121/2021 (Annexure-4) before the same court,

seeking an order for maintenance for herself and the

child. There is no person to chaperone the petitioner and

the child from Thiruvaniyoor to Ernakulam to contest

Annexure-1. The respondent has deserted the petitioner

and his child and gone abroad. If the cases are

transferred to the same court, they can be consolidated

and jointly tried and it would save judicial time and be

convenient for both parties. Hence, the transfer petition.

4. The respondent's case, in brief, in Tr.P(C)

No.805/2021 is that; he has also instituted O.P. (Div) TR.P(C) Nos.722 & 805 OF 2021

No.3071/2021 before the Family Court, Ernakulam,

seeking a decree for divorce. The petitioner has not

sought for transfer of the said case. The distance between

Thiruvaniyoor to Ernakulam is less than the distance from

Ernakulam to Muvattupuzha. It would be convenient for

the petitioner to contest the proceedings before the

Family Court, Ernakulam. Hence, the transfer petition.

5. Heard; Sri.C.Dilip, the learned counsel

appearing for the petitioner - wife and Sri.M. Dinesh, the

learned counsel appearing for the respondent - husband.

6. It is on record that the petitioner - wife - has

already instituted Annexures 3 and 4 before the Family

Court, Muvattupuzha. Undisputedly, the respondent is

employed abroad. He is prosecuting the proceedings

through his power of attorney holder. Therefore, it is

inconsequential, so far as the respondent is concerned,

whether the cases are prosecuted before the Family

Court, Ernkaulam or Muvattupuzha. It is trite, that the TR.P(C) Nos.722 & 805 OF 2021

convenience of the power of attorney, cannot override that

of the parties to the 'lis'. The petitioner is residing in her

parental home with a two year old child. Even though the

distance from the petitioner's residence to the Family

Court, Ernakulam may be less than the distance to

Muvattupuzha, it would be difficult for her to travel from

Thiruvaniyoor to Ernakulam, especially due to the heavy

traffic congestion in the city. More over, the Family Court,

Muvattupuzha is a lighter Court when compared to the

Family Court, Ernakulam. Therefore, I am of the definite

view that, it would be convenient for both parties, that all

the cases be tried by the Family Court, Muvattupuzha. If

all the cases are tried by the same court, they can be

consolidated and jointly tried which would avoid conflict

of decisions and save precious judicial time.

7. The law with respect to transfer of proceedings,

particularly matrimonial disputes, is no longer res-integra,

in view of the categoric declaration of law by the Hon'ble TR.P(C) Nos.722 & 805 OF 2021

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.

8. In the light of the rival contentions and the

findings rendered above, the totality of the facts and

circumstances and the law laid down by the Hon'ble

Supreme Court in the afore-cited decisions, I dismiss

Tr.P(C) No.805/2021 and allow Tr.P(C) No.722/2021 in

exercise of the discretionary powers of this Court under

Section 24 of the Code of Civil Procedure.

In the result, Tr.P(C) No.805/2021 is dismissed and

Tr.P(C) No.722/2021 is allowed, by ordering the transfer TR.P(C) Nos.722 & 805 OF 2021

of O.P.No.2330/2021 from the Family Court, Ernakulam to

the Family Court, Muvattupuzha. The parties would be at

liberty to move the Family Court, Muvattupuzha for

consolidation and joint trial of all the cases between them.

The Registry shall forward a copy of this judgment to the

Family Court, Ernakulam with instructions to forthwith

transmit the records in Annexure-1 to the Family Court,

Muvattupuzha. The Family Court, Muvattupuzha shall,

immediately on receipt of the records in

O.P.No.2330/2021, call the case along with Annexures 2, 3

and 4.

sd/-

C.S.DIAS, JUDGE rkc/03.06.22 TR.P(C) Nos.722 & 805 OF 2021

APPENDIX OF TR.P(C) 722/2021

PETITIONER ANNEXURES

Annexure 1 TRUE PHOTO COPY OF ORIGINAL PETITION IN OP NO 2330/2021 ON THE FILE OF FAMILY COURT, ERNAKULAM DATED 2.10.2021

Annexure 2 TRUE PHOTO COPY OF SUMMONS ISSUED BY THE FAMILY COURT, ERNAKULAM IN OP NO 2330/2021 DIRECTING PETITIONER TO APPEAR ON 13.12.2021

Annexure 3 TRUE PHOTO COPY OF PETITION IN OP NO 882/2021 DATED 15.11.2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT MUVATTUPUZHA

Annexure 4 TRUE PHOTO COPY ORIGINAL PETITION IN MC NO 121/2021 DATED 15.11.2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT MUVATTUPUZHA TR.P(C) Nos.722 & 805 OF 2021

APPENDIX OF TR.P(C) 805/2021

PETITIONER'S ANNEXURES

Annexure A1 TRUE COPY OF THE O.P.NO.2330/2021 DATED 2.10.2021 ON THE FILE OF FAMILY COURT ERNAKULAM.

Annexure A2 TRUE COPY OF THE O.P.NO.3071/2021 DATED 10.12.2021 ON THE FILE OF FAMILY COURT, ERNAKULAM.

Annexure A3 TRUE COPY OF THE O.P.NO.882/2021 DATED 15.10.2021 ON THE FILE OF FAMILY COURT MUVATTUPUZHA.

Annexure A4 TRUE COPY OF THE M.C.NO.121/2021 ON THE

OF 2021 MUVATTUPUZHA. DATED 15.11.2021.