Nisha @ Mary Trincy vs Shaju Jacob .K
2022 Latest Caselaw 5845 Ker

TR.P(C) NO. 243 OF 2022
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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. 243 OF 2022
       AGAINST THE ORDER/JUDGMENT IN OP 963/2022 OF FAMILY
                          COURT,KOZHIKODE
PETITIONER/RESPONDENT:

          NISHA @ MARY TRINCY
          AGED 31 YEARS
          D/O. ANTONY, KAYYALAKKAL (H), PUTHUPADI (PO),
          THAMARASSERY, KOZHIKODE-673586, PRESENTLY RESIDING AT
          PALAKKAL (H), CANAL WARD, ALAPPUZHA-688007.

          BY ADV BINDU SREEKUMAR


RESPONDENT/PETITIONER:

          SHAJU JACOB .K
          AGED 52 YEARS
          S/O. JACOB, KUNDUKULAM (H), POOVATHOOR (PO),
          PAVARATTI, THRISSUR-680508.


     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. 243 OF 2022
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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.963/2022

(Annexure-A2) from the Family Court, Kozhikode to the

Family Court, Alappuzha.

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

of transfer petition is that; her marriage with the respondent

was dissolved as per Annexure-A1 decree. The parties have

an eight year old son, who is in the custody of the petitioner.

Subsequent to Annexure-A1, the petitioner has re-married

and has two children in the present marriage. In order to

harass the petitioner, the respondent has filed Annexure-A2,

seeking custody of the child born in their wedlock. The

petitioner and the child are residing within the jurisdiction

of the Family Court, Alappuzha. In view of Section 9 of the

Guardian and Wards Act,1890, the Family Court,

Alappuzha , alone has the jurisdiction to entertain a petition TR.P(C) NO. 243 OF 2022

filed under the said Act. Moreover, no prejudice would be

caused for the respondent to contest the proceeding before

the Family Court, Alappuzha. On the other hand, severe

hardship would be caused, if the petitioner and the child

are to appear before the Family Court at Kozhikode. Hence

the transfer petition.

3. Heard the learned counsel appearing for the

petitioner. Even though notice was served on the

respondent, there is no appearance for the respondent.

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 [(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 TR.P(C) NO. 243 OF 2022

ordering the transfer of a case from one Court to another.

5. 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 exercise 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.963/2022 from the Family Court,

Kozhikode to the Family Court, Alappuzha. The Registry

shall forward a copy of this judgment to the Family Court,

Kozhikode, with instructions to forthwith transmit the

records in O.P. 963/2022 to the Family Court, Alappuzha. The

Family Court, Alappuzha shall, immediately on receipt of the

records, issue notice to the parties for their appearance.

Sd/-

ma/31.05.2022                              C.S.DIAS, JUDGE
                          /True copy/
 TR.P(C) NO. 243 OF 2022

 TR.P(C) NO. 243 OF 2022


                  APPENDIX OF TR.P(C) 243/2022

PETITIONER ANNEXURES

Annexure 1             TRUE COPY OF THE ORDER NO.679/2016 DATED

17.12.2016 DISSOLVING THE MARRIAGE OF THE PETITIONER BY A DECREE OF DIVORCE.

Annexure 2 TRUE COPY OF THE NOTICE DATED 18.4.2022 ISSUED BY THE FAMILY COURT, KOZHIKODE.