Milda vs Biju K.J
2022 Latest Caselaw 6790 Ker

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Tr.P (C) No.490 of 2021


          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                     TR.P(C) NO. 490 OF 2021
     TO TRANSFER OP 135/2020 OF FAMILY COURT, KALPETTA
PETITIONER/S:

           MILDA
           AGED 25 YEARS
           D/O. THANKACHAN, VELIYILPARAMBIL,
           KURUPPANKULANGARA P.O, CHERTHALA SOUTH
           PANCHAYATH, WARD NO. 8, ALAPPUZHA 688 539
           BY ADV R.K.PRASANTH


RESPONDENT/S:

           BIJU K.J
           AGED 44 YEARS
           S/O. JOSEPH, KIHKKWRHIL HOUSE, PULPALLY, PAKKOM
           P.O, BATHERY TALUK, WAYANAD DISTRICT 673 592
           BY ADVS.
           P.ANUROOP
           V.K.SREENA
           BENOY JOSEPH


    THIS TRANSFER PETITION (CIVIL) HAVING
COME UP FOR ADMISSION ON 14.06.2022, THE
COURT   ON THE   SAME  DAY DELIVERED  THE
FOLLOWING:
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Tr.P (C) No.490 of 2021

                        C.S DIAS,J.
                    ---------------------------
                Tr.P (C) No.490 of 2021
                    -----------------------------
           Dated this the 14th 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.135/2020 (Annexure A4) from the Family Court,

Kalpetta to the Family Court, Alapuzha.

2. The petitioner's case, in brief, in the

memorandum of transfer petition is that, she is the

wife of the respondent. They are issue-less. Due to

the matrimonial cruelty meted out on the petitioner,

she has filed MC No.43/2018 (Annexure A2) under

the provisions of the Protection of Women from

Domestic Violence Act before the Court of the

Judicial First Class Magistrate, Cherthala. As a

counterblast to the above proceedings, the

respondent has filed Annexure A4, seeking a decree

for restitution of conjugal rights. The marital

Tr.P (C) No.490 of 2021

relationship is irretrievable broken. The petitioner

is residing in her parental home in Cherthala. There

is no person to chaperone her from Cherthala to

Kalpetta to defend Annexure A4. Moreover, the

respondent has also not sought for transfer of

Annexure A2. Therefore, necessarily, he would have

to contest Annexure A2 before the Family Court,

Cherthala. Hence, the transfer petition.

3. Heard the learned counsel appearing for

the petitioner and the learned counsel appearing for

the respndent.

4. 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 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)

Tr.P (C) No.490 of 2021

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.

5. In the light of the law laid down in the

afore-cited decisions, the uncontroverted pleadings

and materials on record, the totality of the facts and

circumstances of the case, particularly the fact that

Annexure A2 is pending consideration before the

Court of the Judicial First Class Magistrate,

Cherthala and now the petitioner has filed OP

No.986/2021 before the Family Court, Cherthala, I

am inclined to exercise the discretionary powers of

this Court under Section 24 of the Code of Civil

Procedure and order the transfer of Annexure A4.

In the result, I allow the transfer petition by

ordering the transfer of O.P No.135/2020 from the

Family Court, Kalpetta to the Family Court,

Alappuzha. The parties would be at liberty to seek

for consolidation and joint trial of all the cases

Tr.P (C) No.490 of 2021

between them. The Registry shall forward a copy of

this judgment to the Family Court, Kalpetta with

instructions to forthwith transmit the records in

Annexure A4 to the Family Court, Alappuzha. The

Family Court, Alappuzha shall, immediately on the

receipt of the records in Annexure A4, post the case

along with OP No.986/2021.

sd/-

Sks/14.6.2022 C.S.DIAS, JUDGE

Tr.P (C) No.490 of 2021

APPENDIX OF TR.P(C) 490/2021

PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE C.M.P NO. 7278/2019 IN M C NO 43/2018, FILED UNDER SECTION 23 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLANCE ACT, 2005 Annexure A2 A TRUE COPY OF THE INTERIM ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT AT CHERTHALA IN C M P NO. 7278/2019 IN M.C 43/2018 DATED 08- 01-2020, BY GRANTING RS. 5000/- RUPEES FIVE THOUSAND) AS MAINTENANCE TO THE PETITIONER.

Annexure A3 A TRUE COPY OF THE SUMMONS FROM THE FAMILY COURT, KALPETTA IN O.P NO.

135/2020, DATED 25-08-2021 Annexure A4 A TRUE COPY OF THE ORIGINAL PETITION FOR RESTITUTION OF CONJUGAL RIGHTS, BEARING O.P NO. 135/2020 IN THE FILE OF FAMILY COURT OF KALPETTA DATED 09- 03-2021 Annexure A5 A TRUE COPY OF THE HALL TICKET (PROVISIONAL) ISSUED TO THE PETITIONER BY PRO-VICE CHANCELLOR, SREE SAKARACHARYA UNIVERSITY OF KALADI FOR 6TH SEMESTER B.A DANCE (BARATHANATYAM) 2018 ADMISSION REGULAR EXAMINATION APRIL 2021.