Aswathy C.G vs Vysakh C.S
2022 Latest Caselaw 5844 Ker

TR.P(C) NO. 595 OF 2021
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            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. 595 OF 2021
   AGAINST THE ORDER/JUDGMENT IN OP 345/2021 OF FAMILY COURT,
                            KALPETTA
PETITIONER/RESPONDENT:

          ASWATHY C.G.,
          AGED 24 YEARS
          D/O. GANGANDHARAN C.G.,
          CHUNDAPAZHOOR HOUSE, ARIYALLUR VILLAGE, TIRURANGADI
          TALUK, USHA NURSERY, ARIYALLUR P.O.,
          MALAPPURAM 676 312.

          BY ADVS.
          C.HARIKUMAR
          SANDRA SUNNY
          ARUN KUMAR M.A


RESPONDENT/PETITIONER:
           VYSAKH C.S.,
           AGED 32 YEARS
           S/O. SIVAN,
           KUNNUMMAL HOUSE,
           THOMATTUCHAAL, KADALMAAD, SULTHAN BATHERY TALUK,
           VADUVANCHAAL P.O. , WAYANAD 673 581.

          BY ADVS.
          M.R.HARIRAJ
          THANUJA ROSHAN
          VISWAJITH C.K
          GANGA A.SANKAR
          GISHA G. RAJ
          REJIVUE K.C.
          ALINA ANNA KOSE


     THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 TR.P(C) NO. 595 OF 2021
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                            ORDER

The transfer petition is filed under Section 24 of the

Code of Civil Procedure, seeking to transfer O.P No.345/2021

(Annexure-A1) from the Family Court, Kalpetta to the Family

Court, Tirur.

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

of transfer petition is that; her marital relationship with the

respondent is irretrievably broken. The respondent has

filed Annexure A1, inter alia, for the custody of their minor

child. The petitioner and the child are residing at

Tirurangadi in Malappuram District, which alone has the

jurisdiction to entertain Annexure A1, in view of Section 9 of

the Guardian and Wards Act, 1890. Severe inconvenience

would be caused to the petitioner and the child, if she is to

contest Annexure A1 before the Family Court, Kalpetta.

Hence the transfer petition.

3. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the TR.P(C) NO. 595 OF 2021

respondent.

4. The learned counsel appearing for the respondent

submits that the respondent has no serious objection in the

case being transferred from the Family Court, Kalpetta to the

Family Court, Tirur, but there may be a direction to the

Family Court, Tirur, to refer the parties to mediation

immediately on their appearance and failing the mediation

proceeding, the Family Court may consider Annexure-A2

application, filed by the respondent, for the interim custody

of the child.

5. It is on record that the petitioner and her child are

residing at Tirurangadi in Malappuram District. In view of

the statutory stipulation in Section 9 of the Guardian and

Wards Act,1890, it is the court where the child ordinarily

resides that has the jurisdiction to entertain a petition filed

under the said Act.

6. The law in respect of transfer of proceedings,

particularly in matrimonial disputes, is no longer res-integra,

in view of the categoric declaration of law by the Hon'ble TR.P(C) NO. 595 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.

7. In the light of the uncontroverted averments in the

memorandum of transfer petition and the law laid down by

the Hon'ble Supreme Court in the afore-cited decisions, I am

inclined to allow the transfer petition by exercising the

discretionary powers of this Court under Section 24 of the

Code of Civil Procedure.

In the result,, I allow the transfer petition by ordering

the transfer of O.P. No.345/2021 from the Family Court,

Kalpetta to the Family Court,Tirur. The Registry shall

forward a copy of this judgment to the Family Court,

Kalpetta with instructions to forthwith transmit the records TR.P(C) NO. 595 OF 2021

in O.P. 345/2021 to the Family Court, Tirur. The parties are

directed to appear before the Family Court, Tirur on

1.7.2022. Immediately on the appearance of the parties, the

Family Court shall refer them to the Mediation Centre. In

the event of the failure of the mediation proceeding, the

Family Court, Tirur, shall expeditiously consider the

application for interim custody of the child, in accordance

with law, and pass orders on the same.

Sd/-

ma/31.5.2022                             C.S.DIAS, JUDGE

                          /True copy/
 TR.P(C) NO. 595 OF 2021





                  APPENDIX OF TR.P(C) 595/2021

PETITIONER ANNEXURES

Annexure A1            THE TRUE COPY OF THE PETITION IN O.P. NO.

345 OF 2021 FILED BY THE RESPONDENT BEFORE THE HONBLE FAMILY COURT KALPETTA DATED 07.09.2021.

Annexure A2 THE TRUE COPY OF THE PETITION IN I.A. NO. 2 OF 2021 IN O.P. NO. 345 OF 2021 FILED BY THE RESPONDENT BEFORE THE HONBLE FAMILY COURT, KALPETTA DATED 7.09.2021.