Kerala High Court
Soumya T.P vs Niju K.Rajan on 31 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
TR.P(C) NO. 29 OF 2022
TRANSFER OF OP 779/2021 OF FAMILY COURT, MUVATTUPUZHA TO THE
FAMILY COURT, KANNUR.
PETITIONER/S:
SOUMYA T.P
AGED 34 YEARS
D/O. CHANDHANAKUNJI, AKKALATH HOUSE, VELLOR POST,
PAYYANNUR, KANNUR DISTRICT 670 307.
BY ADVS.
M.SASINDRAN
P.K.SUBHASH
RESPONDENT/S:
NIJU K.RAJAN,
AGED 37 YEARS
S/O. RAJAN.K.K, KANDOTHUMOOLAYI HOUSE, KANINADU POST,
PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT 682 310.
BY ADVS.
BIMALA BABY
NIKITTA TRESSY GEORGE
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
Tr.P(C) No.29 of 2022
C.S DIAS,J.
---------------------------
Tr.P(C) No.29 of 2022
-----------------------------
Dated this the 31st day of May, 2022.
ORDER
The transfer petition is filed under Sec.24 of the
Code of Civil Procedure seeking to transfer O.P
No.779/2021 (Annexure A1) from the Family Court,
Muvattupuzha to the Family Court, Kannur.
2. The petitioner's case in brief, in the
memorandum of transfer petition is that, the respondent -
her husband - has filed Annexure A1, seeking for return
of money and gold ornaments and also for compensation.
The petitioner has already filed OP 1294/2021 (Annexure
AII) and OP 1295/2021 (Annexure AIII) before the Family
Court, Kannur, seeking past maintenance for herself and
her child and for permanent custody of the child,
respectively. The petitioner is unemployed. She is
residing with her parents within the jurisdiction of the
Family Court, Kannur. The distance between her
Tr.P(C) No.29 of 2022
residence and the Family Court, Muvattupuzha is more
than 300 kilometers. The respondent has filed Annexure
A1 just to harass her. The petitioner would be put to
severe difficulty and hardship if she is to contest
Annexure A1 before the Family Court, Muvattupuzha.
Hence, the transfer petition.
3. Heard; Sri.M.Sasindran, the learned counsel
appearing for the petitioner and Smt.Bimala Baby, the
learned counsel appearing for the respondent.
4. Sri.M.Sasindran reiterated the contentions in
the transfer petition and sought for transfer of Annexure
A1 from the Family Court, Muvattupuzha to the Family
Court, Kannur.
5. Smt.Bimala Baby opposed the transfer petition
on the ground that the petitioner has violated the
conditions in the mediation agreement entered into
between the parties in Annexure AIII proceeding.
According to her, the petitioner is not providing interim
Tr.P(C) No.29 of 2022
custody of her child to the respondent. Therefore, the
transfer petition may be dismissed.
6. It is on record that Annexures AII and AIII
proceedings, filed by the petitioner against the
respondent, are pending before the Family Court, Kannur.
The respondent has not sought for transfer of the above
proceedings. Therefore, necessarily he has to appear
before the Family Court, Kannur and contest the same.
On the other hand, the petitioner and her six year old son
are residing at Payyannur, Kannur, within the jurisdiction
of the Family Court, Kannur.
7. In view of Sec.9 of the Guardian and Wards Act,
1890, it is the Family Court, Kannur, which has the
jurisdiction to entertain a petition for custody of the child.
Therefore, I find that the petitioner has made out a case
for the transfer of Annexure A1 from the Family Court,
Muvattupuzha to the Family Court, Kannur.
8. The law in respect of transfer of proceedings,
particularly in matrimonial disputes, is no longer res-
Tr.P(C) No.29 of 2022
integra, in view of the categoric declaration of law by the
Hon'ble 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], Santhini V. Vijaya Venkatesh [2017 (4)
KLT 415 (SC)] Valsal Nisha v. Rajesh Soman Nair
[2020(8) KLR 475] wherein it is 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 averments in
the memorandum of transfer petition, particularly the
fact that the petitioner and the child are residing at
Kannur and Annexures AII and AIII are pending before
the Family Court, Kannur, I am of the definite view that
Annexure A1 is to be transferred from the Family Court,
Muvattupuzha to the Family Court, Kannur.
Tr.P(C) No.29 of 2022
10. In the totality of the facts and circumstances of
the case, the law laid down by the Hon'ble Supreme
Court in the afore-cited decisions, I am satisfied that
the discretionary powers of this Court under Section 24
of the Code of Civil Procedure is to be exercised.
In the result, I allow the transfer petition by
ordering the transfer of O.P. 779/2021 from the Family
Court, Muvattupuzha to the Family Court, Kannur. The
Registry shall forward a copy of this judgment to the
Family Court, Muvattupuzha, with instructions to
forthwith transmit the records in O.P.No.779/2021 to the
Family Court, Kannur. Needless to mention that if the
respondent has any grievance regarding the non-
compliance of the terms and conditions of the mediation
agreement entered into between the parties in Annexure
AIII proceedings, the respondent would be at liberty to
move the competent Court for enforcement of the
mediation agreement. The parties shall appear before
Tr.P(C) No.29 of 2022
the Family Court, Kannur either in person or through
their Counsel on 16.6.2022.
sd/-
Sks/31.5.2022 C.S.DIAS, JUDGE
Tr.P(C) No.29 of 2022
APPENDIX OF TR.P(C) 29/2022
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE O.P. NO. 779/2021 FILED
BY THE RESPONDENT DATED 26.10.2021 BEFORE
THE FAMILY COURT, MUVATTUPUZHA.
Annexure AII TRUE COPY OF THE O.P. NO. 1294/2021 FILED
BY THE PETITIONER NOVEMBER 2021 BEFORE
THE FAMILY COURT, KANNUR.
Annexure A1II TRUE COPY OF THE O.P. NO. 1295/2021 FILED
BY THE PETITIONER DATED NOVEMBER 2021
BEFORE THE FAMILY COURT, KANNUR.
