Kerala High Court
Haseena.S vs Shameer Khan.A on 17 June, 2022
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Tr.P (C) Nos. 86,99 & 295 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
TR.P(C) NO. 86 OF 2021
TO TRANSFER OP 1282/2020 OF FAMILY COURT, NEDUMANGAD
PETITIONER/S:
HASEENA S.,
AGED 32 YEARS
D/O. SHAHIDA BEEVI, KANNIYAZHIKAM VEEDU,
THEKKUMBHAGAM CHERIYIL, KOTTAPPURA, PARAVOOR,
KOLLAM 691 301.
BY ADV M.R.SASITH
RESPONDENT/S:
SHAMEER KHAN A.,
AGED 37 YEARS
S/O. ALI KUNJU ASHARAF, CHARUVILA PUTHEN VEEDU,
KURUMBAYAM P.O. KALLARA, THIRUVANANTHAPURAM 695608.
BY ADVS.
SRI.BIJITH S.KHAN
SRI.N.ANAND
SMT.APARNA UDAYAKUMAR
KUM.CHITHRA P.GEORGE
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17.06.2022 ALONG WITH TRPC NOS 99 AND 295 OF
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Tr.P (C) Nos. 86,99 & 295 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
TR.P(C) NO. 99 OF 2021
TO TRANSFER OP 1295/2020 OF FAMILY COURT, NEDUMANGAD
PETITIONER/S:
HASEENA.S.
AGED 32 YEARS
D/O.SHAHIDA BEEVI, KANNIYAZHIKAM VEEDU,
THEKKUMBHAGAM CHERIYIL, KOTTAPPURA, PARAVOOR,
KOLLAM-691 301.
BY ADV M.R.SASITH
RESPONDENT/S:
SHAMEER KHAN.A.
AGED 37 YEARS
S/O.ALI KUNJU ASHARAF, CHARUVILA PUTHENVEEDU,
KURUMBAYAM P.O., KALLARA, THIRUVANANTHAPURAM-695
608.
BY ADVS.
SRI.BIJITH S.KHAN
SRI.N.ANAND
KUM.CHITHRA P.GEORGE
SMT.APARNA UDAYAKUMAR
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17.06.2022 ALONG WITH TRPC NOS 86 AND 295 OF
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Tr.P (C) Nos. 86,99 & 295 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
TR.P(C) NO. 295 OF 2021
TO TRANSFER OP 1432/2020 OF FAMILY COURT,KOLLAM
PETITIONER/S:
1 SHAMEER KHAN A.
AGED 37 YEARS
S/O ALI KUNJU ASHRAF,
CHARUVILA PUTHENVEEDU,
KURUMBAYAM P.O,
KALLARA, THIRUVANANTHAPURAM-695608.
2 ASHRAF ALI KINJU
AGED 67 YEARS
S/O ALI KUNJU,
CHARUVILA PUTHENVEEDU,
KURUMBAYAM P.O, KALLARA, THIRUVANANTHAPURAM-695608.
BY ADVS.
N.ANAND (KAR/1414/2008)-11256
BIJITH S.KHAN
APARNA UDAYAKUMAR
RESPONDENT/S:
HASEENA.S.
AGED 32 YEARS
D/O SHAHIDA BEEVI,
KANNIYAZHIKALAM VEEDU, THEKKUMBHAGAM CHERIYIL,
KOTTAPPURA, PARAVOOR, KOLLAM-691301.
BY ADV M.R.SASITH
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17.06.2022 ALONG WITH TRPC NOS 86 AND 99 OF 2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Tr.P (C) Nos. 86,99 & 295 of 2021
C.S DIAS,J.
---------------------------
Tr.P (C) Nos. 86,99 & 295 of 2021
-----------------------------
Dated this the 17th day of June, 2022.
ORDER
As the transfer petitions are between the
husband and wife and the father of the husband, they
are being disposed of by this common order.
2. Tr.P(C) 295/2021 is filed by the husband and
father, seeking to transfer OP 1432/2020 filed by the
wife, from the Family Court, Kollam to the Family
Court, Nedumangad. Tr.P(C)Nos.86 and 99 of 2021
are filed by the wife, seeking to transfer of OP
Nos.1282 and 1295 of 2020, filed by the husband,
from the Family Court, Nedumangad to the Family
Court, Kollam. The parties are, for the sake of
convenience, referred to as per their status and the
pleadings in Tr.P(C) No.295/2021, as it is the most
comprehensive transfer petition.
Tr.P (C) Nos. 86,99 & 295 of 2021
3. The petitioners' case in Tr.P (C)295/2021 is
that, the respondent is the wife of the first petitioner.
The second petitioner is the father of the first
petitioner. The first petitioner and the respondent
have four daughters born in their wedlock. Due to the
estrangement in marital relationship, the respondent
has filed OP 1432/2020 (Annexure 1) against the
petitioners, before the Family Court, Kollam, seeking
a decree for return of money and gold ornaments. The
first petitioner has filed OP Nos.1282 and 1295 of
2020, (Annexures 2 and 3), against the respondent,
before the Family Court, Nedumangad, seeking an
order for the permanent custody of the children and a
decree for restitution of conjugal rights. The distance
between Nedumangad and Kollam is 67 kms. As the
first petitioner has to discharge his duties as an Imam
and his father is old and infirm, it would be convenient
Tr.P (C) Nos. 86,99 & 295 of 2021
if Annexures 2 and 3 are transferred from the Family
Court, Kollam to the Family Court, Nedumangad.
4. The respondent has filed Tr.P(C)Nos.86 and
99 of 2021, seeking to transfer Annexures 2 and 3 to
the Family Court, Kollam. It is her case that she and
four daughters are residing in her parental home at
Paravoor. It would be extremely difficult for her to
travel all the way from Paravoor to Nedumangad and
contest Annexure 1. Moreover, she and the children
are in vagrancy. There is no person to chaperone
them from Paravoor to Nedumangad. Hence,
considering the comparative hardship, preference may
be given to the respondent. Hence, the transfer
petitions may be allowed.
5. Heard; Sri.N.Anand, the learned counsel
appearing for the petitioners in Tr.P(C)No.295/2021
and Sri.M.R Sasith Panicker, the learned counsel
appearing for the respondent in Tr.P(C)No.295/2021.
Tr.P (C) Nos. 86,99 & 295 of 2021
6. 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) 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.
7. Going by the pleadings and materials on
record, it is undisputed that the first petitioner and
respondent have four children born in their wedlock,
who are aged 11,9, 7 and 5 years, respectively. They
are in the permanent custody of the respondent. The
Tr.P (C) Nos. 86,99 & 295 of 2021
first petitioner is aged only 37 years. He is residing
within the distance of 67 kms from the Family Court,
Kollam. On a consideration of the comparative
hardship of the first petitioner and the respondent, I
am of the firm view that comparative hardship of the
respondent and children has to be given due
preference. Moreover, if all the cases are consolidated
and jointly tried before the same Court, it would save
precious judicial time and avoid conflict of decisions.
Therefore, I am inclined to exercise the discretionary
powers of this Court under Section 24 of the Code of Civil
Procedure and allow Tr.P(C)Nos.86 and 99 of 2021 by
ordering the transfer of Annexures 2 and 3.
Consequently, I am not inclined to transfer Annexure 1.
In the result, the following orders are passed:
(i) Tr.P(C) No.295/2021 is dismissed.
(ii) Tr.P(C) No.86/2021 is allowed by ordering the
transfer of O.P No.1282/2020 from the Family
Court, Nedumangad to the Family Court, Kollam.
Tr.P (C) Nos. 86,99 & 295 of 2021
(iii) Tr.P (C) No.99/2021 is allowed by ordering the
transfer of O.P No.1295/2021 from the Family
Court, Nedumangad to the Family Court, Kollam.
(iv) The parties would be at liberty to move the
Family Court, Kollam, and seek for consolidation
and joint trial of all the cases between them.
(v) The petitioners would be at liberty to seek for
dispensation of the personal appearance of the
second petitioner.
(vi) The Registry shall forward a copy of this
judgment to the Family Court, Nedumangad, with
instructions to forward the records in Annexures 2
and 3 to the Family Court, Kollam.
(vii) The parties are directed to mark their
appearance either in person or through their
Counsel before the Family Court, Kollam on
1.8.2022.
(viii)If the first petitioner files any application
seeking interim custody of the children, the same
shall be considered, as expeditiously as possible.
Tr.P (C) Nos. 86,99 & 295 of 2021
(ix) The Family Court, Kollam, is directed to call
Annexures 2 and 3 along with OP 1432/2020 on
1.8.2022.
sd/-
sks/17.06.2022 C.S.DIAS, JUDGE
Tr.P (C) Nos. 86,99 & 295 of 2021
APPENDIX OF TR.P(C) 86/2021
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF OP 1432/20 FILED BY
PETITIONER BEFORE THE HON'BLE FAMILY
COURT, KOLLAM.
ANNEXURE A2 TRUE COPY OF OP 1282/20 FIELD BY
RESPONDENT BEFORE THE HON'BLE FAMILY
COURT, NEDUMANGAD.
Tr.P (C) Nos. 86,99 & 295 of 2021
APPENDIX OF TR.P(C) 99/2021
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF OP 1432/20 FILED BY
PETITIONER BEFORE THE HON'BLE FAMILY
COURT, KOLLAM.
ANNEXURE A2 TRUE COPY OF OP 1295/20 FILED BY
RESPONDENT BEFORE THE HON'BLE FAMILY
COURT, NEDUMANGAD.
ANNEXURE A3 NOTICE FOR SUMMONS BEFORE FAMILY COURT,
NEDUMANGAD IN OP 1295/2020.
Tr.P (C) Nos. 86,99 & 295 of 2021
APPENDIX OF TR.P(C) 295/2021
PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF OP 1432/20 FILED BY
RESPONDENT BEFORE THE HON'BLE FAMILY
COURT, KOLLAM.
ANNEXURE 2 TRUE COPY OF OP 1282/20 FILED BY THE
PETITIONER FOR PERMANENT CUSTODY OF
CHILDREN
ANNEXURE 3 TRUE COPY OF OP 1295/20 FILED BY THE
PETITIONER FOR RESTITUTION OF CONJUGAL
RIGHTS
TRUE COPY OF THE DISTANCE MAP BETWEEN
ANNEXURE 4 NEDUMANGAD AND FAMILY COURT, KOLLAM
