High Court of KeralaDivision BenchPetitions allowed; transfer of OP No.795/2022 t...
Athulya A v. Adarsh P
Case / Petition Number:OP (FC) No.305 of 2023; Tr.P(C) No.455 of 2023
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- Amit Rawal
- C.S. Sudha
- Judgment Date
- 2023-09-12
- Court Decision / Holding
- O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023 are allowed. The Family Court, Tirur, Malappuram, is directed to transmit records to the Family Court, North Paravur, Ernakulam. The Family Court shall decide the custody dispute on merits after hearing both sides. Interlocutory applications, if any, shall stand closed. The union of OP (FC) 305 and Tr.P(C) 455 is disposed of in light of the above directions.
- Final Disposition
- Petitions allowed; transfer of OP No.795/2022 to North Paravur; records to be transmitted; interlocutory applications closed.
Parties to the Case
Appellants / Petitioners
- Athulya A
Respondents
- Adarsh P
Legal Representation & Advocates
Counsels for Petitioners
- • Ashik K. Mohammed Ali
- • Muhammed Rifa P.M.
- • Ramseena N.
Counsels for Respondents
- • Thushara V K
- • Rakesh Roshan
Case Synopsis & Summary
This is a common judgment by a Division Bench of the Kerala High Court, deciding two connected petitions filed by Athulya A challenging a Family Court order and seeking transfer of proceedings from Tirur to Ernakulam. OP (FC) No.305 of 2023 arises under Article 227 of the Constitution and challenges Ext.P3, an order in IA No.2/2022 in OP No.795/2022 (Family Court, Malappuram) which directed custody of the couple’s minor child to the petitioner-father on the 2nd and 4th Saturdays each month. Athulya A contends that Ext.P3 is cryptic and non-speaking, she was not given an opportunity to file objections, and the child is of tender age and breastfed, making the order unsuitably burdensome. The Court finds Ext.P3 to be non-speaking and remands the matter to the Family Court to hear both sides and pass a reasoned order on merits. Tr.P(C) No.455 of 2023, filed by Athulya A, seeks transfer of OP No.795/2022 to the Family Court, North Paravur, arguing convenience given long travel distances (over 200 km) and a breastfeeding child, resulting in significant hardship. The petition invokes the Apex Court’s catena of decisions emphasizing wife’s convenience in transfers. The High Court allows the transfer, directing transmission of records and closure of pending interlocutory applications. The decision cites Mangala Patil Kale, Amita Shah, and Aiswarya N.C.V. as guiding authorities.
Provisions of Law Cited
Article 227 of the Constitution of IndiaSpecial Marriage Act, 1954Code of Criminal Procedure, Section 164
Legal Doctrines & Maxims
- Preference to the convenience of the wife in transfer of Family Court cases (doctrine)
- In the interest of justice (principle)
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioner contends Ext.P3 is a non-speaking order passed without giving her an opportunity to oppose IA No.2/2022; the child is of tender age and breastfeeding, making long-distance travel burdensome; she faces hardship due to the travel and lack of opportunity to raise objections; she relies on decisions emphasizing the wife's convenience in transfers and requests transfer of the proceedings to a more convenient forum (North Paravur) and a remand for merits.
Contentions of Respondents
The respondent/husband argues that the convenient forum for litigation is the Family Court at Tirur and opposes transfer, asserting no justification sufficient to override the established locus and convenience for the Family Court at Tirur.
Cited Precedents (3)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Mangala Patil Kale v. Sanjeev Kumar Kale | (2003) 10 SCC 280 | Positive | Cited as authority that preference should be given to the wife’s convenience in transferring cases pending before the Family Court. |
| Amita Shah v. Virender Lal Shah | (2003) 10 SCC 609 | Positive | Cited to reinforce the principle of prioritizing the wife’s convenience in transfer scenarios. |
| Aiswarya N.C.V v. A.S.Saravana Karthik Sha | 2022 SCC OnLine SC 1199 | Positive | Cited as supportive of the same convenience-based transfer doctrine in recent jurisprudence. |
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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 AMIT RAWAL**
## **&**
**THE HONOURABLE MRS. JUSTICE C.S. SUDHA**
**TUESDAY, THE 12[TH] DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945**
**OP (FC) NO. 305 OF 2023**
**AGAINST THE INTERIM ORDER DATED 9/3/2023 IN OP 795/2022 OF FAMILY**
**COURT, TIRUR IN MALAPPURAM DISTRICT**
## **PETITIONER/RESPONDENT:**
**ATHULYA A, AGED 26 YEARS, D/O.MADHUSOODHANAN, ALIKKATHODI HOUSE, MANKADA VILLAGE, KOOTTIL DESOM, PERINTHALMANNA TALUK, KOOTTIL P O, MALAPPURAM-679324, NOW RESIDING AT ALIKKATHODI HOUSE, PAREPALLAM ROAD, ST. GEORGE CHURCH, PUTHENVELIKARA, ERNAKULAM, PIN - 683594**
**BY ADVS.ASHIK K.MOHAMED ALI MUHAMMED RIFA P.M. RAMSEENA N.**
## **RESPONDENT/PETITIONER:**
**ADARSH P, AGED 38 YEARS, S/O.RAJAN, PADINJAKKARA HOUSE, IRIMBILIYAM AMSOM, PURAMANNOOR DESOM, TIRUR TALUK, PURAMANNOOR P O, MALAPPURAM, PIN - 676552**
**BY ADVS.THUSHARA.V K.RAKESH ROSHAN(K/100/2001)**
**THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2023, ALONG WITH Tr.P(C).455/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023**
2
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE AMIT RAWAL**
**&**
**THE HONOURABLE MRS. JUSTICE C.S. SUDHA**
**TUESDAY, THE 12[TH] DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945 TR.P(C) NO. 455 OF 2023**
**TO TRANSFER OP 795/2022 OF FAMILY COURT, TIRUR IN MALAPPURAM**
**DISTRICT TO FAMILY COURT, NORTH PARAVUR IN ERNAKULAM**
## **DISTRICT**
## **PETITIONER/RESPONDENT:**
**ATHULYA A, AGED 26 YEARS, D/O.MADHUSOODHANAN, ALIKKATHODI HOUSE, MANKADA VILLAGE, KOOTTIL DESOM, PERINTHALMANNA TALUK, KOOTTIL P O, MALAPPURAM679324, NOW RESIDING AT ALIKKATHODI HOUSE, PAREPALLAM ROAD, ST. GEORGE CHURCH, PUTHENVELIKARA, ERNAKULAM., PIN - 683594**
**BY ADVS.ASHIK K.MOHAMED ALI MUHAMMED RIFA P.M. RAMSEENA N.**
## **RESPONDENT/PETITIONER:**
**ADARSH P, AGED 38 YEARS, S/O.RAJAN, PADINJAKKARA HOUSE, IRIMBILIYAM AMSOM, PURAMANNOOR DESOM, TIRUR TALUK, PURAMANNOOR P O, MALAPPURAM, PIN - 676552**
**BY ADVS.THUSHARA.V K.RAKESH ROSHAN(K/100/2001)**
**THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2023, ALONG WITH OP (FC).305/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023**
3
## **AMIT RAWAL & C.S.SUDHA, JJ.**
**----------------------------------------------------O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023 ----------------------------------------------------------------Dated this the 12[th] day of September, 2023**
## **C O M M O N J U D G M E N T**
## **C.S.Sudha, J.**
## **O.P (FC) No.305 of 2023**
This petition under Article 227 of the Constitution of India has been filed by the respondent/wife in O.P.No.795/2022 challenging Ext.P3 order dated 09/03/2023 in I.A.No.2/2022 on the file of the Family Court, Malappuram. O.P. No.795/2022 was moved by the husband for restitution of conjugal rights. In the said proceedings he moved I.A.No.2/2022 seeking interim custody of the minor child. The respondent herein is the petitioner/husband in the proceedings before the Family Court, Malappuram. The parties will be referred to as described in the proceedings before the trial court.
2. The case of the petitioner/father in OP.No.795/2022 is – The marriage of the petitioner and respondent was solemnized on 08.11.2017 under the Special Marriage Act, 1954. One male child was born out of the wedlock on 06.07.2021. In March 2022, the petitioner had to shift to the respondent’s house along with their child as both the parties were working
**O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023**
4
and so the minor child was being looked after by the latter’s mother. Differences of opinion arose between the parties as a result of which the respondent sent him out of her house and cut all ties with him. Hence the petition seeking restitution of conjugal rights. During the pendency of the proceedings, he moved I.A.No.2/2022 to get interim custody of the child.
3. The Family Court, after hearing both sides, directed the respondent/mother to hand over custody of child to the petitioner/father every 2[nd] and 4[th] Saturday from 11:00 a.m. till the following Sunday at 05:00 p.m. The handing over was directed to be done at the court premises. The respondent/wife aggrieved by the said order, is before this Court.
4. The respondent/wife challenges Ext.P3 order on the following grounds - (i) that she was never given an opportunity to file objection to I.A.No.2/2022; (ii) that the child of tender age is still a breastfeeding child; and (iii) that Ext.P3 is a cryptic order passed without giving any reasons.
5. Heard both sides.
6. Ext.P3 apparently is a non-speaking order. None of the objections raised by the respondent are seen considered by the Family Court. Hence in the interest of justice, we set aside the impugned order and remand the matter to the Family Court concerned. The Family Court shall take into consideration the contentions raised by both sides and after hearing both
**O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023**
5
sides, pass an order on merits.
O.P. (F.C) No. 305 of 2023 is disposed of accordingly.
## **Tr.P.(C)No.455 of 2023**
7. This Petition has been filed by the petitioner/wife, seeking transfer of Original Petition No. 795/2022, on the file of Family Court, Tirur, Malappuram to the Family Court, North Paravur in Ernakulam District.
8. According to the petitioner, she has been constrained to shift her residence to Ernakulam due to the constant threat and harassment by the respondent/husband and his brother. The Family Court, Tirur is situated more than 200 kms away from her present residence. She finds it very difficult to travel such a long distance on each posting of the case. The petitioner is facing severe inconvenience since she has a breastfeeding child and is left with none at home to look after the child when she is away in connection with the case. Besides, she will have to incur huge amount as travel expense resulting in heavy financial burden.
9. The respondent/husband objects to the petition and contends that the convenient place of litigation of the case between the parties is the Family Court, Tirur.
10. The Apex Court in a catena of decisions has time and again
**O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023**
6
reiterated that, in the matter of transferring cases pending before the Family Court, preference should be given to the convenience of the wife. ( **Mangala**
**Patil Kale v. Sanjeev Kumar Kale (2003) 10 SCC 280 ; Amita Shah v. Virender Lal Shah (2003)10 SCC 609** and **Aiswarya N.C.V v. A.S.Saravana Karthik Sha, 2022 SCC OnLine SC 1199** ).
11. In the light of the aforesaid dictums and in the light of the facts and circumstances of this case, this petition is allowed. Consequently, O.P.No.795/2022, Family Court, Tirur, Malappuram will stand transferred to the Family Court, North Paravur, Ernakulam. The Family Court, Tirur shall transmit the records to the Family Court, North Paravur, at the earliest.
In the result, O.P. (F.C) No. 305 of 2023 and Tr.P.(C)No.455 of 2023 are allowed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
**AMIT RAWAL JUDGE**
Sd/-
## **C.S.SUDHA JUDGE**
ami/
**O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023**
7
## **APPENDIX OF OP (FC) 305/2023**
## **PETITIONER EXHIBITS**
|**Exhibit P1**|**TRUE COPY OF THE PETITION FILED BY THE**|
|---|---|
||**RESPONDENT BEFORE THE HONOURABLE FAMILY**|
||**COURT, TIRUR AS OP NO. 795 OF 2022.**|
|**Exhibit P2**|**TRUE COPY OF THE AFFIDAVIT AND PETITION**|
||**IN IA NO. 2 OF 2022 IN OP NO. 795 OF**|
||**2022 OF THE HONOURABLE FAMILY COURT,**|
||**TIRUR.**|
|**Exhibit P3**|**TRUE COPY OF THE ORDER DATED 09-03-2022**|
||**IN IA NO. 2 OF 2022 IN OP NO. 795 OF**|
||**2022 OF THE HONOURABLE FAMILY COURT,**|
||**TIRUR.**|
|**Exhibit P4**|**TRUE COPY OF THE STATEMENT OF THE**|
||**PETITIONER RECORDED UNDER SECTION 164 OF**|
||**THE CODE OF CRIMINAL PROCEDURE.**|
**O.P (FC) No.305 of 2023 and Tr.P.(C)No.455 of 2023**
8
## **APPENDIX OF TR.P(C) 455/2023**
|**APPENDIX OF TR.P(C) 455/2023**|**APPENDIX OF TR.P(C) 455/2023**|
|---|---|
|**PETITIONER ANNEXURES**||
|**Annexure A1**|**TRUE COPY OF THE PETITION FILED BY THE**|
||**RESPONDENT BEFORE THE HONOURABLE FAMILY**|
||**COURT, TIRUR AS OP NO. 795 OF 2022.**|
|**Annexure A2**|**TRUE COPY OF THE AFFIDAVIT AND PETITION**|
||**IN IA NO. 2 OF 2022 IN OP NO. 795 OF**|
||**2022 OF THE HONOURABLE FAMILY COURT,**|
||**TIRUR.**|
|**Annexure A3**|**TRUE COPY OF THE ORDER DATED 09-03-2023**|
||**IN IA NO. 2 OF 2022 IN OP NO. 795 OF**|
||**2022 OF THE HONOURABLE FAMILY COURT,**|
||**TIRUR.**|
|**Annexure A4**|**TRUE COPY OF THE STATEMENT OF THE**|
||**PETITIONER RECORDED UNDER SECTION 164 OF**|
||**THE CODE OF CRIMINAL PROCEDURE.**|