Kerala High Court
Subi Binu vs Binu Abdul Kareem on 5 March, 2025
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Tr.PC 128/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
TR.P(C) NO. 128 OF 2024
OP NO.1386 OF 2018 OF FAMILY COURT, THIRUVANANTHAPURAM
PETITIONER/S:
SUBI BINU
AGED 47 YEARS
D/O.MUHAMMED JALEEL,RESIDING AT MADATHIL VEEDU, K.E.ROAD,
KANJIRAPPALLY.P.O, KOTTAYAM DISTRICT, PIN - 686507
BY ADVS.
C.R.SANISH
KARTHIK S. ACHARYA
ANJANA K.P.
RESPONDENT/S:
1 BINU ABDUL KAREEM
AGED 48 YEARS
S/O. LATE ABDUL KARIM, BARKATH.TC6/1560-3, THURUVICKAL.P.O,
ULLOOR-AKKULAM ROAD,THIRUVANANTHAPURAM, PIN - 695031
2 SINU ARIFF
AGED 46 YEARS
W/O. ARIFF ABDUL KHADER, THACHAVALLATH VEEDU, NEAR YMCA
JUNCTION, THOTTUMMUKHAM, ALUVA, PIN - 683105
BY ADV B.ANANTHU
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Tr.PC 128/2024
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ORDER
(Dated this the 5th day of March 2025)
This Transfer Petition is filed by the wife of the first
respondent to transfer O.P.No.1386 of 2018, pending before the
Family Court, Thiruvananthapuram, to the Family Court, Pala.
The second respondent is the father and the third respondent is
the sister of the 1st respondent. The marriage between the
petitioner and the first respondent was solemnised on 7.3.1999,
and two children were born in the wedlock.
2. The petitioner filed O.P.No.331 of 2017 before the Family
Court, Pala, for the return of money and gold ornaments. The 2nd
respondent in the said O.P. approached this court by filing
Tr.P.C.No.486 of 2017 to transfer the said O.P. pending before
the Family Court, Pala, to the Family Court,
Thiruvananthapuram, on the ground that he is suffering from
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Parkinson disease and is also a heart patient. As he is a permanent
resident of Nalanachira in Thiruvananthapuram, it is difficult to
appear before the Family Court, Pala.
2. This court, by Annex.A-2 judgment, allowed the Tr.P.C.
and O.P.No.331 of 2017 pending before the Family Court, Pala,
was transferred to the Family Court, Thiruvananthapuram. It was
also ordered that both parties may make appropriate applications
for exempting personal appearance before the Family Court,
Thiruvananthapuram.
3. The case of the petitioner in this petition is that the 2nd
respondent in O.P.(C) No.1386 of 2018, who was the petitioner in
Tr.P. © No.486 of 2017, died on 15.5.2021. The petitioner herein
is a permanent resident of Kottayam district, and she finds it very
difficult to travel more than 150 km on one side to contest the
case. The 1st respondent/husband is a native of
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Thiruvananthapuram, and there is a threat from him to settle the
matter. Moreover, the 2nd respondent herein, who is the sister of
the 1st respondent, is also a resident of Aluva in Ernakulam
district. Therefore, prayed that since the 2nd respondent in O.P.
passed away, it has to be retransferred to the Family Court, Pala.
4. A counter affidavit is filed by the 2nd respondent
contending that earlier Tr.P.C.No.486 of 2017 was filed by her
father, which was allowed by this court. In the Petition, specific
grounds were also raised that O.P.No.331 of 2017 was filed in
the Family Court, Pala, in collusion with her husband, the 1st
respondent herein. Parties have submitted themselves before the
jurisdiction of the Family Court, Thiruvananthapuram, from
20.8.2017 onwards. O.P.(C) No.331 of 2017 is now posted to
25.6.2024. The averment that the petitioner is a permanent
resident of Kottayam is false and denied. The petitioner and her
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children are permanent residents of Thiruvananthapuram, within
the jurisdiction of the Family Court, Thiruvananthapuram, and
the present Petition is only to delay the final consideration of the
Original Petition. Annex - R2(b) is the renewed voters list of
Kazhakootam Electoral Constituency prepared for the year 2024,
and sl no.43 is the petitioner herein and sl. No. 90 and 1025 are
the children. The said document would show that Fiza
Mohammed, who is the daughter of the petitioner, attained the age
of 18 in 2024, and she has included her name in the voter's list
published on 4.4.2024. It shows that the petitioner, as well as her
children, are residing in Thiruvananthapuram district.
5. Annex.R2(a) shows that the 2nd respondent is a
permanent resident of Thiruvananthapuram and contended that
the address shown in the Transfer Petition, at Aluva, is her
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matrimonial home and not her permanent residence. Therefore,
prayed that the Transfer Petition be dismissed.
6. A reply affidavit is filed by the petitioner to the counter
affidavit filed by the 2nd respondent. It was contended that though
the petitioner returned to her parental house from
Thiruvananthapuram, the names in the electoral roll were not
changed. To substantiate that the petitioner is residing in
Kottyaam, Annex-A3 copy of Aadhar is produced. The notice in
Tr.P.C No.486 of 2017 was received by the 2nd respondent at the
address in Aluva. O.P.No.1386 of 2018 is in the stage of
evidence, and therefore, she has to appear in person before the
Family Court, Thiruvananthapuram.
7. The petitioner initially filed the Original Petition for the
return of gold ornaments and money before the Family Court,
Pala, as O.P.No.331 of 2017. It is at the instance of the father of
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the respondents, that Tr.P.(C) No.486 of 2017 was filed and that
O.P. was transferred to the Family Court, Thiruvananthapuram,
taking into consideration the health condition of the 2nd
respondent/father. Now, the father of the respondents is no more.
The change of circumstance now brought into the Transfer
Petition is that since the 2nd respondent in the Original Petition is
no more, the petitioner being a resident of Kottayam, is entitled
to transfer the same from the Family Court, Thiruvananthapuram
to the Family Court, Pala,, as the earlier Transfer Petition was
allowed only taking into consideration of the health condition of
the father of the respondents.
8. It is worth noting that though the 2nd respondent contends
that she is a resident of Thiruvananthapuram, but she is
represented by a power of attorney and the counter affidavit is
filed by the power attorney holder on behalf of the 2nd respondent.
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Annex-R2(a) copy of the passport issued on 07.6.2020 shows that
the place of issue is Dubai, though the address shown is that of
the spouse in Thiruvananthapuram. The filing of the counter
affidavit by the power attorney holder, coupled with the
endorsement in the passport showing that the place of issue is
Dubai, prima facie shows that she is not a permanent resident of
Thiruvananthapuram. If she is permanently residing in
Thiruvananthapuram, nothing prevents her from swearing the
counter affidavit in this Petition in Thiruvananthapuram on
19.5.2024.
9. As mentioned earlier, the earlier transfer was effected
only after considering the ill health of the respondents' father. As
a lady residing in Kottayam, the petitioner is entitled to re-transfer
of the same as the cause of the earlier Transfer Petition, has now
ceased. In the earlier Transfer Petition order, this court gave
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liberty to both parties to make appropriate applications for
exemption from personal appearance, and the court was directed
to consider them favourably. Since the 1st respondent is not
contesting the case, the 2nd respondent alone objects to the
transfer, and she is being represented through a power of attorney
holder, the contention that it is very difficult for her to travel from
Thiruvananthapuram to Pala is out of place.
10. In Drishya S. Krishnan v. Rajesh (2024 KHC 1018), it
was held that if the power of attorney holder of any of the spouses
is not in a position to move around and take care of the
respondent, it is for the respondent to make alternate arrangement
and the same cannot be used as a reason to oppose the transfer.
10. The Apex Court in Sumitha Singh v. Kumar Sanjay
and another [(2001)10 SCC 41)], Mona Aresh Goel v. Aresh
Satya Goel [(2000) 9 SCC 255], Vaishali Shridhar Jagtap v.
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Shridhar Vishwanath Jagtap [AIR 2016 SC 3584] and
Santhini v. Vijaya Venkatesh [2017 (4) KLT 415 (SC)], held
that, in matrimonial disputes, the convenience of the wife is to be
looked into and hence, in such cases the transfer is effected.
Therefore, taking into consideration the entire aspects of the
case, I am of the opinion that the transfer has to be allowed and
O.P.No.1386 of 2018 pending before the Family Court,
Thiruvananthapuram is withdrawn and transferred to the Family
Court, Pala. The Family Court, Thiruvananthapuram, shall
immediately transfer the records to the Family Court, Pala. On
receipt of the records, the Family Court, Pala, shall proceed with
the case from the stage at the time of transfer and dispose of the
same in accordance with law.
I make it clear that the respondents will be at liberty to apply
for personal exemption, if required, for any purpose other than
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taking evidence.
The parties shall appear before the Family Court, Pala, on
02.04.2025.
sd/-BASANT BALAJI
JUDGE
dl/
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APPENDIX OF TR.P(C) 128/2024
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE ORIGINAL PETITION, OP
NO.331/2017 FILED BY THE PETITIONER HEREIN BEFORE
THE FAMILY COURT PALA
Annexure A2 THE TRUE COPY OF THE JUDGMENT DATED 21/12/2017 IN
TRPC 486/2017 PASSED BY THIS HONOURABLE COURT.
RESPONDENT ANNEXURES
Annexure R2(a) True copy of the passport of the 2nd respondent
Annexure R2(b) True copy of relevant pages of the updated and
renewed voters list of Kazhakootam Electoral
constituency prepared by the Election Commission
of India for the year 2024
PETITIONER ANNEXURES
Annexure A3 The true copy of petitioners adhar card showing
my address
Corrected
