Suma Kamalamma vs Anilkumar C
2023 Latest Caselaw 6409 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                &
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                  TR.APPEAL(C) NO. 5 OF 2023
 AGAINST THE ORDER DATED 23.05.2023 IN TRANSFER PETITION
     (C) NO.142 OF 2023 OF THE HIGH COURT OF KERALA
APPELLANT/PETITIONER:

            SUMA KAMALAMMA
            AGED 50 YEARS, D/O. NANU PILLAI SIVA PILLAI,
            WHITE PALACE APARTMENT, MAMPPALLY LNE, EROOR
            WEST P.O., THRIPUNITHURA VILLAGE, ERNAKULAM
            TALUK, ERNAKULAM, PIN - 682306.
            BY ADVS.
            R.LAKSHMI NARAYAN
            R.RANJANIE


RESPONDENT/RESPONDENT:

            ANILKUMAR C.,
            AGED 54 YEARS, S/O. C. RAJAGOPALAN, "PRABHA
            NIVAS", CHIYARAM P.O., THRISSUR DISTRICT,
            NOW RESIDING AT HIGHLIFE APARTMENT, OAK
            BUILDING P.O. KOORKANJERI, KOOTTATHU LANE,
            KOORKANHERI VILLAGE, THRISSUR TALUK, THRISSUR,
            PIN - 680007.
            BY ADV C.A.CHACKO



     THIS    TRANSFER   APPEAL(CIVIL)    HAVING    COME    UP    FOR
ADMISSION    ON   13.06.2023,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                       2
Transfer Appeal (C) No.5 of 2023


                                   JUDGMENT

P.G. Ajithkumar, J.

The petitioner in Transfer Petition (C) No.142 of 2023

has filed this appeal under Section 5(i) of the Kerala High

Court Act, 1958.

2. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondent.

3. The petitioner is the wife of the respondent. The

respondent filed O.P.No.2 of 2023 before the Family Court,

Thrissur, seeking a decree of divorce. That petition was filed

invoking the provisions of Section 13(1)(ia) and (ib) of the

Hindu Marriage Act, 1955. The said petition was filed before

the Family Court, Thrissur, stating that the respondent along

with the appellant had last resided together at Koorkenchery

in Thrissur Taluk. The appellant filed Tr.P.(C) No.142 of 2023

for an order transferring the said original petition to the

Family Court, Ernakulam stating that she is now residing at

Ernakulam and she proposes to file petition for getting back

her gold ornaments from the respondent and also for

maintenance before the Family Court, Ernakulam. She also

Transfer Appeal (C) No.5 of 2023

contended that she has been suffering from various diseases

and not in a position to travel to Thrissur.

4. The learned Single Judge, after hearing both sides,

held that no valid reason was brought out, except the distance

between the two courts and accordingly dismissed the

transfer petition.

5. The learned counsel appearing for the appellant

would submit that the appellant is living in penury; whereas

the respondent, who is an Ex-serviceman, has sufficient

income and in such circumstances compelling the appellant to

travel to Thrissur for attending the Family Court there is

unjust. The learned counsel for the appellant further would

submit that the marriage between the appellant and the

respondent was solemnised at Ernakulam and having the wife

been residing at Ernakulam at the time of presentation of

O.P.No.2 of 2023, the said case should have been transferred

to the Family Court, Ernakulam.

6. The learned counsel appearing for the respondent,

on the other hand, would submit that the parties were

residing together at Thrissur, and therefore the Family Court,

Thrissur has jurisdiction to entertain the petition. In the view

Transfer Appeal (C) No.5 of 2023

of the learned counsel for the respondent, the appellant, after

desertion, voluntarily took up residence at Ernakulam, and

therefore her plea for transfer the case is untenable.

7. The Apex Court in Mona Aresh Goel v. Aresh

Satya Goel [(2000) 9 SCC 255], Sumita Singh v. Kumar

Sanjay and another [(2001) 10 SCC 41] and Vaishali

Shridhar Jagtap v. Shridhar Vishwanath Jagtap [(2016)

14 SCC 356] considered the request of the wife to transfer

the petition from one court to another court. In all those cases

decisions were rendered on the particular facts of each case.

However, the Apex Court took the common view that the

convenience of the wife has to be looked into while deciding a

petition for transfer of a matrimonial dispute. In Santhini v.

Vijaya Venketesh [(2018) 1 SCC 1], the Apex Court laid

down the principles that would apply while a wife seeks

transfer of matrimonial dispute to a court where she can

attend conveniently. The Apex Court reiterated the views

taken in the earlier decisions that the husband ordinarily shall

take proceedings in court in whose jurisdiction the wife

resides and that will lesser inconvenience to the parties and

avoid delay. The Apex Court further observed that a statutory

Transfer Appeal (C) No.5 of 2023

right of a woman cannot be nullified by taking technical

advancement and destroying her right under a law, more so,

when it relates to family matters. The further observation is

that dignity of woman is sustained and put on a higher

pedestal if her choice is respected.

8. From the pleadings in O.P.No.2 of 2023 itself it can

be seen that the marriage between the appellant and the

respondent was solemnised at Kanayannur Shiva Temple,

Ernakulam, which is within the jurisdiction of the Family

Court, Ernakulam. As per the provisions of Section 19 of the

Hindu Marriage Act, the court within whose local limit the

marriage was solemnised is the court primarily having

jurisdiction. Of course, the court at the place where the

parties to the marriage last resided together also has

jurisdiction. However, the newly added provision, sub-section

(iii-a) of Section 19 of the Hindu Marriage Act provides an

advantageous position to the wife by enabling her to present

a petition where she is residing on the date of presentation of

the petition. When such a preferential right is created in

Section 19 of the Hindu Marriage Act, and Ernakulam is her

place of residence and place of convenience, the plea of the

Transfer Appeal (C) No.5 of 2023

appellant for a transfer of O.P.No.2 of 2023 to the Family

Court, Ernakulam is quite just and reasonable.

9. In the light of the law laid down in the aforesaid

decisions, the request for transfer is liable to be allowed.

Accordingly, we allow this appeal and on setting aside the

order dated 23.05.2023 in Transfer Petition (C) No.142 of

2023 of the learned Single Judge, the request for the transfer

is allowed. O.P.No.2 of 2023 on the file of the Family Court,

Thrissur is transferred to Family Court, Ernakulam. The Family

Court, Thrissur will transmit the records to Family Court,

Ernakulam forthwith.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

Transfer Appeal (C) No.5 of 2023

APPENDIX OF TR.APPEAL(C) 5/2023

PETITIONER ANNEXURES Annexure A-1 THE TRUE COPY OF THE MEDICAL REPORT DATED 08.05.2023, ISSUED BY THE ASTER MEDICITY