High Court of KeralaSingle Judge2017-12-13Transfer petitions allowed; cases transferred t...

Alphonsa Joseph @ Alphonsa Rose Joseph v. Anand Joseph @ Anand Vellappattil Joseph

Case / Petition Number:Tr.P(C).No.689 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
Judgment Date: 2017-12-13
Court Decision / Holding: Transfer petitions allowed; O.P.(G&W) No.1785/2016 and O.P. No.1784/2016 (Family Court, Thiruvananthapuram) are to be transferred to the Family Court, Irinjalakkuda. The Family Court, Irinjalakkuda shall receive the case papers/records, issue notices to both sides, and proceed in accordance with law. The court noted the convenience/discretionary relief for exemptions from personal appearance if represented by counsel and directed that counselling/mediation be conducted, with personal appearance as specifically ordered by the Family Court.
Final Disposition: Transfer petitions allowed; cases transferred to the Family Court, Irinjalakkuda; records to be transmitted; notices to both sides; counselling/mediation to be conducted; exemptions from personal appearance may be granted upon counsel representation; final disposal of transfer petitions.

Parties to the Case

Appellants / Petitioners

Alphonsa Joseph @ Alphonsa Rose Joseph

Respondents

Anand Joseph @ Anand Vellappattil Joseph

Legal Representation & Advocates

Counsels for Petitioners

• C.S. Dias
• N.K. Subramanian
• P.K. Dhanya
• Maria Elizabeth Wilson

Counsels for Respondents

• K. Kusumam
• Basant Balaji

Case Synopsis & Summary

This Transfer Petition (Tr.P.C. Nos. 689 & 690 of 2017) deals with the request to transfer two Family Court proceedings from Thiruvananthapuram to Irinjalakkuda: O.P.(G&W) No. 1785/2016 (custody/matrimonial relief) and O.P. No. 1784/2016 (divorce). The petitioner, wife, asserts she currently resides with her parents at Chalakudy in Thrissur District and faces substantial hardship traveling to Thiruvananthapuram for hearings, especially given the ongoing custody and divorce petitions and related interim applications. She contends she is not employed and is financially dependent on her father. The respondent-husband argues transfer could alternatively occur to Ernakulam if allowed, contending the wife’s convenience would then be served, but the wife refutes employment claims. The court relies on Supreme Court jurisprudence emphasizing the need to consider the inconvenience to the wife in family court transfer petitions and notes the doctrinal principle that such inconvenience warrants special consideration. After evaluating the materials and principles (including Sumitha Sing, Rajwinder Kaur, Mona Aresh Goel, and Santhini), the court is inclined to grant the transfer and orders both O.Ps to be moved to the Family Court, Irinjalakkuda, with papers and records transferred. The judgment permits exemption from personal appearance if represented by counsel and directs counselling/mediation while reserving power for personal appearances as ordered by the court below.

Provisions of Law Cited

Section 125 of the Code of Criminal Procedure, 1973

Legal Doctrines & Maxims

Inconvenience to the wife in transfer petitions of family court matters should be given special consideration by the courts.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-wife submits that continuing to travel from Chalakudy to Thiruvananthapuram for proceedings in two Family Court matters is onerous and unfair, particularly since the child custody and divorce actions are pending. She emphasizes that she currently resides with her parents and is not gainfully employed, making her reliance on familial support necessary. She relies on apex court precedents teaching that inconvenience to the wife in transfer petitions merits substantial consideration and seeks transfer to Irinjalakkuda to reduce hardship and ensure real access to justice.

Contentions of Respondents

The respondent-husband opposed a straightforward transfer, suggesting that if any change is warranted it might be to Ernakulam, which he contends could be convenient for the wife. He argued that the wife’s employment status (alleged in Ernakulam) could influence transfer factors; however, the petitioner denies employment in Ernakulam. The respondent’s position appears to focus on convenience and potential administrative efficiency if transfer is approved, but he does not dispute the wife’s hardship criteria outright.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Sumitha Sing v. Kumar Sanjary and another	(2001) 10 SCC 41	Positive	Used to support the principle that inconvenience to the wife in transfer petitions warrants special consideration.
Rajwinder Kaur v. Balwinder Singh	(2003) 11 SCC 726	Positive	Cited to reinforce the standard that transfer pleas in matrimonial matters must consider the wife’s convenience.
Mona Aresh Goel Vs. Aresh Satya Goel	(2000) 9 SCC 255	Positive	Joined with other precedents to justify special consideration of transfer hardship for the wife.
Santhini Vs. Vijaya Venketesh	2017 (4) KLT 415 (SC)	Positive	SC decision cited for the proposition that transfer pleas should consider the wife’s inconvenience.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939** **Tr.P(C).No. 689 of 2017** **-----------------------** **TO TRANSFER O.P.(G&W) NO.1785/2016 ON THE FILE OF THE FAMILY COURT,TRIVANDRUM TO THE FAMILY COURT, IRINJALAKKUDA.** ## **PETITIONER :** **------------** **ALPHONSA JOSEPH @ ALPHONSA ROSE JOSEPH AGED 31 YEARS,DAUGHTER OF SRI. JOSE KANICHAL, RESIDING AT KANICHAI HOUSE, ANNALLOOR, CHALAKKUDY.** **BY ADVS.SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN SMT.P.K.DHANYA SMT.MARIA ELIZABETH WILSON** ## **RESPONDENT :** **------------** **ANAND JOSEPH @ ANAND VELLAPATTIL JOSEPH AGED 34 YEARS, SON OF SRI.JOHN P. JOSEPH, PERMANENT RESIDENT OF VELLAPPATTIL HOUSE, THUMPOLY, ALLEPPEY - 688 008 AND PRESENTLY RESIDING AT 103 REEM RESIDENCY, KARAMA, DUBAI, U.A.E** **R BY ADV.K.KUSUMAM BY ADV.BASANT BALAJI** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-12-2017, ALONG WITH TPC. 690/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Tr.P(C).No.689 of 2017** ## **----------------------** ## **APPENDIX** |**PETITIONER'S**|**EXHIBITS**| |---|---| |**---------------------**|| |**ANNEXURE A1**|**TRUE COPY OF O.P.(G&W) NO.1785 OF 2016 FILED**| ||**BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM**| ||**BY THE RESPONDENT.**| |**ANNEXURE A2**|**TRUE COPY OF PRELIMINARY OBJECTION FILED BY**| ||**THE PETITIONER IN O.P.(G&W) NO.1785 OF 2016**| ||**FILED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM.**| |**ANNEXURE A3**|**TRUE COPY OF THE ORDER DATED 15.10.2016 IN**| ||**I.A.NO.2862 OF 2016 AND I.A.NO.3024 OF 2016**| ||**IN O.P.(G&W) NO.1785 OF 2016.**| |**ANNEXURE A4**|**TRUE COPY OF THE COMMON ORDER DATED 20.12.2016**| ||**IN O.P.(F.C) NO.616 OF 2016 AND O.P.(F.C)**| ||**NO.678 OF 2016.**| |**ANNEXURE A5**|**TRUE COPY OF THE ORDER DATED 16.01.2017 IN**| ||**O.P.(F.C) NO.616 OF 2016 AND O.P.(F.C) NO.**| ||**678 OF 2016.**| |**ANNEXURE A6**|**TRUE COPY OF M.C.NO.219 OF 2017 FILED BY THE**| ||**PETITIONER BEFORE FAMILY COURT, IRINJALAKUDA.**| |**ANNEXURE A7**|**TRUE COPY OF IMMUNO HISTOCHEMISTRY REPORT**| ||**DATED 30.09.2016 OF THE LAKESHORE HOSPITAL,**| ||**ERNAKULAM.**| |**RESPONDENT'S**|**EXHIBITS**| |**---------------------**|| |**ANNEXURE R1**|**THE TRUE COPY OF THE DRAFT OF THE RENT DEED**| ||**WHICH THE PETITIONER SENT TO THE EMAIL OF THE**| ||**RESPONDENT/HUSBAND FOR HIS APPROVAL.**| |**ANNEXURE R2**|**THE STATEMENT OF ACCOUNT MAINTAINED AT THE**| ||**JOINT ACCOUNT OF THE PETITIONER AND THE RESPONDENT**| ||**AT THE FEDERAL BANK, PANAMPALLY NAGAR BRANCH,**| ||**ERNAKULAM FROM 02.05.2017 TO 20.10.2017.**| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| |**bpr**|| ## **ALEXANDER THOMAS, J.** ## **-------------------------------------------------------** ## **Tr.P.C. Nos.689 & 690 of 2017** ## **-------------------------------------------------------** ## **Dated this the 13[th] day of December, 2017** ## **JUDGMENT** The prayer in Tr.P.C. No.689 of 2017 is as follows: “this Honourable Court may be pleased to order transfer of O.P.(G&W) No.1785/2016 from the Family Court, Thiruvananthapuram to the Family Court, Irinjalakuda.” 2. Heard Sri. C.S. Dias, the learned counsel appearing for the petitioner (wife) and Sri. Basant Balaji, the learned counsel appearing for the respondent (husband). 3. The petitioner is the wife of the respondent. From the pleadings, it appears that due to difference of opinion in the matrimonial relationship has led to the filing Tr.P.C. Nos.689 & 690 of 2017 -2- of O.P.(G&W) No.1785/2016 before the Family Court, Thiruvananthapuram, at the instance of the respondent husband, seeking custody of the child. O.P.(G&W) No.1785/2016 is the subject matter of Tr.P.C No.689/2017. The respondent husband has also filed O.P. No.1784/2016 before the Family Court, Thiruvananthapuram, seeking a decree of divorce. The subject matter of Tr.P.C. No.690 of 2017 is regarding the transfer of O.P. No.1784/2016. The petitioner would submit that now she is residing at Chalakkudy in Thrissur District along with her parents and that the petitioner and the child has filed M.C. No.219/2017 before the Family Court, Irinjalakkuda seeking maintenance under the provisions of Section 125 of the Code of Criminal Procedure, 1973. 4. The petitioner would, pointedly, submit that she finds it extremely difficult to travel all the way from Chalakkudy in Thrissur District to Thiruvananthapuram to Tr.P.C. Nos.689 & 690 of 2017 -3- attend the family court proceedings in the aforesaid two matters. 5. The plea made by the petitioner is opposed by the respondent. One of the main objections raised by the respondent husband is that the petitioner is now employed in Ernakulam and that in case, this Court finds to consider the prayer for transfer, then the matter may be ordered to be transferred from the Family Court, Thiruvananthapuram to the Family Court, Ernakulam and that it would be convenient to the petitioner wife as well. The petitioner has filed reply affidavit asserting that she is not, in any manner, employed in Ernakulam and that she is jobless and that she is residing at Chalakkudy in Thrissur District along with her parents and she is fully financial dependent on her father. These averments of the petitioner in the reply affidivt are not rebutted. Therefore, there are no materials before this Court to establish the correctness of the allegations made by Tr.P.C. Nos.689 & 690 of 2017 -4- the respondent husband that the petitioner wife is now employed in Ernakulam. It has been held by the Apex Court in catena decisions as in **Sumitha Sing v. Kumar Sanjary and another** [(2001)10 SCC 41], Rajwinder Kaur v. Balwinder Singh (2003) 11 SCC 726, **Mona Aresh Goel Vs. Aresh Satya Goel** [(2000) 9 SCC 255], **Santhini Vs. Vijaya Venketesh** [2017 (4) KLT 415 (SC)] that in respect of transfer pleas in family court matters, the inconvenience of the wife should be given special consideration by the courts. 6. In view of the aforesaid facts and in the light of the legal principles laid down by the Apex Court in that regard, this Court is inclined to consider the plea for transfer. Accordingly, it is ordered that O.P.(G&W) No.1785/2016 and O.P. No.1784/2016 on the file of the Family Court, Thiruvananthapuram, will stand transferred to the Family Court, Irinjalakkuda. The petitioner will produce a certified copy of this judgment before the Family Court, Tr.P.C. Nos.689 & 690 of 2017 -5- Thiruvananthapuram. Thereupon, the said court shall transfer the entire case papers and records in relation to these two OPs to the Family Court, Irinjalakkuda. On receipt of the case papers, the Family Court, Irinjalakuda will issue notices to both sides and then proceed with the matter in accordance with law. Taking note of the submission made by Sri.Basant Balaji, the learned counsel for the respondent husband, about some of the inconveniences that could be faced by the respondent, it is ordered in the interest of justice, that it will be open to both sides to make necessary applications for grant of exemption from personal appearance, which should be favourably considered by the court below, if the parties are represented by Advocates. However, it is made clear that the parties should personally appear for counselling and mediation process that may be conducted by the court below and should also personally Tr.P.C. Nos.689 & 690 of 2017 -6- appear, whenever so specifically ordered by the Family Court. With these observations and directions, the Transfer Petitions (civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** bpr //TRUE COPY// P.A. TO JUDGE