Kerala High Court
Namitha vs Don on 9 June, 2022
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Tr.P (C) No.462 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
TR.P(C) NO. 462 OF 2021
TO TRANSFER OP 963/2021 OF FAMILY COURT,THRISSUR TO THE
FAMIL COURT, ERNAKULAM
PETITIONER/S:
NAMITHA,
AGED 31 YEARS
W/O. DON, PARANIKKULANGARA, PARAKKADAV P.O.,
ERNAKULAM-683579.
BY ADVS.
JOBY JACOB PULICKEKUDY
ANIL GEORGE
RESPONDENT/S:
DON,
AGED 34 YEARS, S/O. KIDANGAN BENNY, KIDANGAN
HOUSE, PERAMANGALAM P.O., PUZHAKKAL, THRISSUR-
680545, REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER, BENNY, S/O. JOSEPH, PERAMANGALAM P.O.,
THRISSUR DISTRICT.
BY ADV N.L.BITTO
THIS TRANSFER PETITION (CIVIL) HAVING COME
UP FOR ADMISSION ON 09.06.2022, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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Tr.P (C) No.462 of 2021
C.S DIAS,J.
---------------------------
Tr.P (C) No.462 of 2021
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Dated this the 9th day of June, 2022.
ORDER
The transfer petition is filed under Sec.24 of the
Code of Civil Procedure, seeking to transfer O.P
No.963/2021 (Annexure A) from the Family Court,
Thrissur to the Family Court, Ernakulam.
2. The petitioner's case, in brief, in the
memorandum of transfer petition is that, she is the wife
of the respondent. They have a four year old son born
in their wedlock. The respondent is employed abroad.
The respondent has treated the petitioner with cruelty.
However, he has cunningly filed Annexure A before the
Family Court, Thrissur, seeking a decree for restitution
of conjugal rights. The petitioner is residing at
Ernakulam. It would be difficult for her to travel to
Thrissur along with her minor child to defend
Annexure A. Hence, the transfer petition.
Tr.P (C) No.462 of 2021
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
4. The learned counsel appearing for the
petitioner submitted that in addition to Annexure A, the
respondent has also filed OP No.2445/2021 before the
Family Court, Ernakulam, seeking an order for the
custody of the child. Moreover, the respondent is
employed abroad and he is prosecuting the petition
through power of attorney holder.
5. The learned counsel appearing for the
respondent vehemently opposed the transfer petition
on the ground that the power of attorney holder of the
petitioner is 70 years old. He would find it difficult to
travel from Thrissur to Ernakulam to defend Annexure
A. However, the respondent concedes to the fact that
he has filed OP 2445/2021 before the Family Court,
Ernakulam.
6. The sole point that arises for consideration in
the transfer petition is:
Tr.P (C) No.462 of 2021
whether there is any justifiable ground to
exercise the discretionary powers of this Court
under Section 24 of the Code of Civil
Procedure.
7. It is conceded by the respondent that he is
prosecuting the petition through his power of attorney
holder. It is trite that the convenience of the power of
attorney holder cannot be given any weightage in
order to exercise the discretionary powers of this Court
under Section 24 of the Code of Civil Procedure.
Moreover, the respondent himself has filed OP
2445/2021 before the Family Court, Ernakulam,
seeking an order for custody of the child. The
petitioner and child are residing at Ernakulam.
Therefore, since the respondent is employed abroad,
it is inconsequential for him whether the cases are
being tried before the Family Court, Ernakulam or
Thrissur.
8. The law with respect to transfer of
proceedings, particularly matrimonial disputes, is no
longer res-integra, in view of the categoric declaration
Tr.P (C) No.462 of 2021
of law by the Hon'ble Supreme Court in Sumitha Sing
V. Kumar Sanjay and another [2002 KHC 1889],
Mona Aresh Goel V. Aresh Satya Goel [2000 KHC
1835], Vaishali Shridhar Jagtap V. Shridhar
Vishwanath Jagtap [2016 KHC 6489] and Santhini
V. Vijaya Venkatesh [2017 (5) KHC 48]. 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.
9. In the light of the uncontroverted pleadings
and materials on record, the totality of the facts and
circumstances of the case, particularly the fact that the
the respondent is employed abroad and he himself has
filed OP 2445/2021 before the Family Court,
Ernakulam, and the law laid down by the Hon'ble
Supreme Court in the afore-cited decisions, I am
inclined to exercise the discretionary powers of this
Court under Section 24 of the Code of Civil Procedure
Tr.P (C) No.462 of 2021
and transfer OP 963/2021 from the Family Court,
Thrissur to the Family Court, Ernakulam.
In the result, I allow the transfer petition by
ordering the transfer of O.P No.963/2021 from the
Family Court, Thrissur to the Family Court, Ernakulam.
The parties would be at liberty to seek for consolidation
and joint trial of all the cases between them. The
Registry shall forward a copy of this judgment to the
Family Court, Thrissur with instructions to forthwith
transmit the records in Annexure A to the Family Court,
Ernakulam. The Family Court, Ernakulam shall,
immediately on the receipt of the records in Annexure
A, post the case along with OP 2445/2021.
SD/-
Sks/9.6.2022 C.S.DIAS, JUDGE
Tr.P (C) No.462 of 2021
APPENDIX OF TR.P(C) 462/2021
PETITIONER ANNEXURES
Annexure A TRUE PHOTOCOPY OF THE ORIGINAL PETITION
NO. 963/2021.
Annexure B TRUE PHOTOCOPY NOTICE DATED 12/08/2021
TO APPEAR BEFORE THE FAMILY COURT ON
23/09/2021.
