Abraham Varghese v. Jancy

``` TR.P(C) NO. 248 OF 2022 ``` 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944 TR.P(C) NO. 248 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN OP 705/2019 OF FAMILY COURT, ``` ## **`KOTTAYAM`** ## **`PETITIONER/S:`** ``` ABRAHAM VARGHESE AGED 62 YEARS S/O. VARGHESE, KAIPPANPLAKKAL HOUSE, KUDASSANADU P.O, POOZHIKKADU MURI, PANDALAM VILLAGE 689 501 BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ``` ## **`RESPONDENT/S:`** ``` JANCY AGED 58 YEARS NOW RESIDING AT HOUSE NO 131, WARD 22, PANDALAM MUNICIPALITY, NEAR RONY TIMBERS, PATHANAMTHITTA 689 501 ``` ``` BY ADV GIKKU JACOB ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` TR.P(C) NO. 248 OF 2022 ``` 2 ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, 1908 (in short, “Code”), seeking to transfer OP No.705/2019 (Annexure D) from the Family Court, Ettumanoor to the Family Court, Pathanamthitta. 2. The petitioner’s case in brief, in the memorandum of transfer petition is that, the respondent is the wife of the petitioner. The marital relationship is strained. The petitioner has filed OP No.315/2019 (Annexure A) and OP No.292/2019 (Annexure B), against the respondent before the Family Court, Pathanamthitta, for a decree of permanent prohibitory injunction and a decree of divorce, respectively. As a counter blast to Anenxures A and B, the respondent has filed M.C.No.56/2019, against the petitioner, before the Judicial First Class Magistrate CourtI, Changanasseri, invoking the provisions of Protection of Women from Domestic Violence Act. The learned Magistrate has passed Annexure-C residence order, ``` TR.P(C) NO. 248 OF 2022 ``` 3 permitting the respondent to reside in the property mentioned in Annexure-C in Adoor Taluk, Pathanamthitta District. Later, the respondent filed Annexure-D, against the petitioner, for a decree for recovery of money. The respondent had moved this Court, seeking transfer of Annexure-A from the Family Court, Pathanamthitta to the Family Court, Ettumanoor. However, for reasons best known to the respondent, she withdrew the transfer petition and the same was dismissed by Annexure-E order. Thereafter, the petitioner filed WP© No.11605/2020 before this Court, against the respondent, for police protection. Notice in Annexure-F proceeding was served on the respondent in the address shown in Annexure -C order. The respondent is residing within the jurisdiction of the Family Court, Pathanamthitta. Therefore, no inconvenience would be caused to the respondent in Annexuer-D being transferred. Hence, the trasnfer petition. 3. The respondent has filed a counter affidavit, denying the allegations in the transfer petition. She has contended ``` TR.P(C) NO. 248 OF 2022 ``` 4 that Annexures A and B are frivolous proceedings, which have only to be dismissed. She is residing in her parental home within the jurisdiction of the Family Court, Ettumanoor, which is the Court of competent jurisdiction. Moreover, Annexure-C proceeding is pending before the jurisdictional Magistrate at Changanasseri, which is nearer to the residence of the respondent and the Family Court, Ettumanoor. If Annexure-D is transferred, it would cause inconvenience to the respondent. Hence, the transfer petition may be dismissed. 4. The petitioner has filed reply affidavit to the counter affidavit, inter-alia, denying the assertions in the counter affidavit. The petitioner has also produced Annexure-G copy of the Aadhar card of the respondent to establish that the respondent’s permanent residence is in Pandalam, within the jurisdiction of the Family Court, Pathanamthitta. Hence, the petitioner has reiterated his request for transfer of Anenxure-D. 5. Heard; Sri. Rinny Stephen, the learned counsel ``` TR.P(C) NO. 248 OF 2022 ``` 5 appearing for the petitioner and Sri.Gikku Jacob R., the learned counsel appearing for the respondent. 6. The question is whether Annexure-D is to be transferred. 7. It is well settled, in a plethora of decisions of the Honourable Supreme Court and this Court that, normally it is the convenience of the wife that has to be looked into, while ordering transfer of a case from one Court to another. Nonetheless, it is trite, the said aspect is to be decided on case to case basis. 8. A Division Bench of this Court in **Vidhya Mundekkat vs Akhilesh Jayaram** [2021 (6) KHC 506], has categorically held that there is no invariable rule that the convenience of the wife has to be looked into in all cases, while ordering the transfer of the case. 9. In the case at hand, undisputedly, Annexures A and B are pending before the Family Court, Pathanamthitta from the year 2019. Even though the respondent made an attempt to transfer Anenxure-A, she withdrew the transfer ``` TR.P(C) NO. 248 OF 2022 ``` 6 petition which led to the passing of Annexre-E order. 10. It is at the instance of the respondent, she sought for a residence order from the jurisdictional Magistrate and Annexure-C order has been passed in her favour permitting her to reside in Adoor Taluk, Pathanamthitta District. Annexure-G Aadhar card also proves that she is residing in Pathanamthitta District. Even in Annexure-F judgment passed by this Court, the address of the respondent is in Pathanamthitta. All the above materials undoubtedly substantiates that the respondent is residing in Pathanamthitta, within the jurisdiction of the Family court, Pathanamthitta. 11. On the contrary, although the respondent has asserted that she is residing in her parental home within the jurisdiction of the Family Court, Ettumanoor, not a scrap of paper has been produced to prove her residence there. 12. Annexure-C order and Annexure-G Aadhar card lead me to irresistible conclusion that the respondent is a ``` TR.P(C) NO. 248 OF 2022 ``` 7 resident within the jurisdiction of the Family Court, Pathanamathitta. 13. On an overall condonation of the pleadings and materials on record, I am of the definite view that no hardship, prejudice and inconvenience would be caused to the respondent if Annexure-D is transferred. If the proceeding is transferred, it would facilitate the consolidation and joint trial of Annexures A, B and D, which in turn will avoid multiplicity of proceedings, conflict of decisions and save precious judicial time. Thus, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure, taking into account the peculiar facts and circumstances of the case, and order the transfer of Annexure-D. In the result, I allow the transfer petition as follows:- - (i) OP No.705/2019 is transferred from the Family Court, Ettumanoor to the Family Court, Pathanamthitta. (ii) The parties would be at liberty to move the Family Court, Pathanamthitta and seek for consolidation and ``` TR.P(C) NO. 248 OF 2022 ``` 8 joint trial of all the cases between them. - (iii) The Registry shall forward a copy of this order to the Family Court, Ettumanoor with instructions to - forthwith transmit the records in Annexure-D to the Family Court, Pathanamthitta. - (iv) The Family Court, Pathanamthitta shall, immediately on receipt of the records in Annexure-D, post the case along with Annexure-A. - (v) The respondent would be at liberty to move the Family Court, Pathanamthitta and seek for the dispensation of her personal appearance. ## **sd/-** ## **C.S.DIAS, JUDGE** rkc/07.12.22 ``` TR.P(C) NO. 248 OF 2022 ``` 9 ## **`APPENDIX OF TR.P(C) 248/2022`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A`|`TRUE COPY OF THE ORIGINAL PETITION IN O.P`| ||`NO. 315/2019 OF THE FAMILY COURT,`| ||`PATHANAMTHITTA`| |`Annexure B`|`TRUE COPY OF THE ORIGINAL PETITION IN`| ||`O.PNO. 292/2019 OF THE FAMILY COURT,`| ||`PATHANAMTHITTA`| |`Annexure C`|`A TRUE COPY OF THE ORDER DATED 29-07-2019`| ||`OF THE JFCM-1, CHANGANASHERRY IN CMP`| ||`2408/19 IN M.C NO. 56/2019`| |`Annexure D`|`TRUE COPY OF THE ORIGINAL PETITION IN`| ||`O.PNO. 705/2019 OF THE FAMILY COURT,`| ||`KOTTAYAM AT ETTUMANOOR`| |`Annexure E`|`A TRUE COPY OF THE JUDGMENT DATED 22-01-`| ||`2020 OF THIS HON'BLE COURT IN TR.P (C0 NO.`| ||`572/2019`| |`Annexure F`|`A TRUE COPY OF THE JUDGMENT DATED 03-12-`| ||`2020 OF THIS HON'BLE COURT IN W.P(C) NO.`| ||`11605/2020`| |`ANNEXURE-G`|`A TRUE COPY OF THE AADHAAR CARD OF THE`| ||`RESPONDENT`|