Bincy B.S. v. S. Rajan Babu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933** **-----------------------AGAINST OP (G&W) 516/2010 & OP.550/2007 OF FAMILY COURT, NEDUMANGAD** ## ## **BINCY.B.S,W/O.RAJ KUMAR, ACHARIYAZHIKATHU VEEDU,KATTADI PO, POOYAPPALLY, KOLLAM DISTRICT FROM AISWARYA, KESAVAPURAM,NAGAROOR PO, KILIMANOOR, THIRUVANANTHAPURAM.** **BY ADV. SRI.B.MOHANLAL SMT.P.S.PREETHA** ## ## **S.RAJAN BABU, S/O. SHANMUGHAN, K.P.VIII/323,CHALLATHIL, OONNNANPARA, DD ROAD, PEROORKADA PO, THIRUVANANTHAPURAM.** ## **ADV. SRI.R.RAJEEV (MELEVILA) SRI.K.BABU RAJAN SRI.T.A.SREE KUMAR** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY PASSED THE** ## **TR.P(C) NO.63 OF 2011** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **ANNEXURE-I THE TRUE COPY OF THE ORDER IN O.P. NO.302 OF 2007 DATED 30.6.2009 OF THE FAMILY COURT, NEDUMANGAD.** **ANNEXURE-II THE TRUE COPY OF THE ORDER IN O.P. NO.550 OF 2007 DATED 29.6.2009 OF THE FAMILY COURT, NEDUMANGAD.** **ANNEXURE-III THE TRUE COPY OF THE ORDER DATED 03.10.2009 IN I.A. NO.2278 OF 2009 IN O.P.NO.550 OF 2007 IN THE FAMILY COURT, NEDUMANGAD.** **ANNEXURE-IV THE TRUE COPY OF THE MARRIAGE CERTIFICATE NO.455/2010 DATED 22.3.2010 ISSUED BY THE REGISTRAR OF MARRIAGES, VARKALA MUNICIPALITY.** ## **RESPONDENT(S)' EXHIBITS NIL** **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== Tr.P(C) No.63 of 2011 ==================================== Dated this the 29[th] day of August, 2011** ## **O R D E R** Petitioner was married to the respondent and a child was born in that wedlock. Later, on account of difference of opinion between them a decree for divorce (Annexure-I) was given by the Family Court, Nedumangad under Section 13B of the Hindu Marriage Act. In the meantime fight for custody of the child started. Petitioner filed O.P. No.550 of 2007 in the Family Court, Nedumangad which was disposed of by the said court but pursuant to an order passed on an interlocutory application petitioner is required to produce the child in the Family Court, Nedumangad on every first Saturday so that respondent could exercise his visitorial rights. Petitioner in the meantime got remarried. Respondent filed O.P(G&W) No.516 of 2010 in the Family Court, Nedumangad. Prayer in this petition is to transfer O.P. No.550 of 2007 and O.P(G&W) No.516 of 2010 from Family Court, Nedumangad to Family Court, Kottarakkara. In the petition it is stated that after her remarriage petitioner is permanently residing at Pooyappally near Kottarakkara and that the child is studying at Kottarakkara. It is stated that it is a long way from **Tr.P(C) No.63 of 2011** ## -: 2 :- Pooyappilly and Kottarakkara to reach Family Court, Nedumangad and since parents of petitioner are aged and ailing there is nobody to accompany her while she takes the child to Family Court, Nedumangad. In the circumstances it is requested that the cases may be transferred to Family Court, Kottarakkara. 2. Petition is opposed by the respondent on various grounds. In the counter affidavit filed by the respondent it is contended that petitioner is still staying at Kilimanoor, that she is working at Thiruvananthapuram and that is incorrect to say that the child is studying at Kottarakkara. It is pointed out that it is convenient for petitioner to travel from Pooyappally to Family Court, Nedumangad. In paragraph 5 of the counter it is stated that child had told the respondent that the child is attending Sree Sankara Vidyapeedhom School at Chemarathmukku, Kilimanoor, on that information respondent approached the school authorities to know about the study of the child but had to return desparate from the school as the Principal of the School told him that often petitioner's father leaves the child in the school in the play group. 3. In answer to the counter affidavit petitioner has filed a reply affidavit where it is stated that the child is studying in the **Tr.P(C) No.63 of 2011** ## -: 3 :- LKG in Geawa English Medium School, Maruthamonpally, near Pooyappally near the residence of husband of petitioner. Certain documents are also produced in support of the claim of petitioner. 4. Learned counsel for petitioner contended that presently petitioner is on maternity leave and after the leave is over, she proposes to request for a transfer to Kollam so that it is convenient for her to go to her office at Kollam near her husband's house at Pooyappally. It is also stated that the child is studying in Geawa English Medium School at Marthamonpally near Pooyappally and in the circumstances request for transfer may be allowed. Learned counsel referred me to the various certificates petitioner has produced. 5. Learned counsel for respondent contended that the court having jurisdiction to entertain the Original Petition is the Family Court, Nedumangad and placed reliance on the decision in **V.Vasu v. Muralidharan** (AIR 2009 Kerala 128). It is also pointed out by the learned counsel for respondent that the certificates on record give different and conflicting picture as to where exactly the child is studying. According to the learned counsel there is reason to think that the child if at all studying in Geawa English Medium School was brought to that school only **Tr.P(C) No.63 of 2011** ## -: 4 :- to facilitate filing of this petition. Learned counsel contended that certificate which states that child has been studying in the Geawa English Medium School indicated that it referred to a period which existed long back. Learned counsel placed reliance on the ## decision in **Keshavlal Lallubhai v. Lalbhai Trikumlal** **Mills Ltd.** (AIR 1958 SC 512) to contend that in view of Sections 92 and 93 of the Evidence Act contention of petitioner in view of Annexure-V, certificate that the child is presently studying in Geawa English Medium School cannot be accepted. 6. There is a stiff fight for custody of the child. So is the fight in the matter of request for transfer. It is not disputed that petitioner got remarried after Annexure-I, decree to a person who is permanently staying in Pooyappally, near Kottarakkara. Therefore permanent residence of petitioner could be at Pooyappally, near Kottarakkara. Though O.P. No.550 of 2007 was filed for other reliefs, the Family Court, Nedumangad has passed an order on an application preferred by the respondent permitting visitorial rights. The child is to be produced in Family Court, Nedumangad on every first Saturday of the month. It is in the meantime that respondent has filed O.P(G&W) No.516 of 2010, also before Family Court, Nedumangad. **Tr.P(C) No.63 of 2011** -: 5 :- 7. Now I am not at the question whether in which court the original petition ought to have been filed. For, that question does not arise for a decision since O.P(G&W) No.516 of 2010 has been filed before the Family Court, Nedumangad which court had jurisdiction to entertain the O.P. I am concerned only with the question whether proceedings could be transferred to Family Court, Kottarakkara on account of the inconvenience petitioner has pleaded. If the child is studying at Pooyappally and residing at Pooyappally and child and petitioner are called upon to attend Family Court, Nedumangd, then, I am inclined to think that convenience of the child has to be looked into. In the counter affidavit respondent stated that he learned from the child that the child is going to Sree Sankara Vidyapeedhom School near Kilimanoor. But there is no assertion from the respondent that the child is studying in the said School. On the other hand though in the original Petition it is stated that child is studying in Kottarakkara, petitioner has produced documents to show that the child is studying in Geawa English Medium School at Maruthamonpally near Pooyappally which is near Kottarakkara. True, in Annexure-V certificate dated 26.05.2011 issued from the school what is stated is that “child has been studying in LKG of **Tr.P(C) No.63 of 2011** ## -: 6 :- the school”. It is with reference to the said expression learned counsel for respondent has argued that certificate only indicated that child was studying in the past in the the said School. Annexure R(3), is another certificate respondent has obtained from the same school. That certificate is dated 09.06.2011 and states that as per school extract the date of admission of the child in that school is August 02, 2010. To clarify the doubt that learned counsel for respondent has expressed from Annexure-V, certificate, petitioner has produced Annexure-VII certificate dated 27.08.2011 from Geawa English Medium School. There, it is certified that the child “is studying” in LKG in that school for the academic year 2011-2012. 8. In these circumstances I find no reason to disbelieve the version of petitioner that the child is studying in Geawa English Medium School, Maruthamonpally near Pooyappally which admittedly is near Kottarakkara. 9. I stated that as per order in O.P. No.550 of 2007 petitioner is required to produce the child before Family Court, Nedumangad. The distance from Pooyappally to Kottarakkara is far less than the distance from Pooyappally to Nedumangad. Having regard to the convenience of the child as he is studying at ## **Tr.P(C) No.63 of 2011** **==> picture [41 x 9] intentionally omitted <==** Pooyappally near Kottarakkara, the request for transfer is to be allowed. The permanent residence of petitioner is at Pooyappally. She has to take the child from Pooyappally to Nedumangad. I must also bear in mind that respondent though is residing at Perroorkada, is working at Venjaramoodu which is still nearer to Kottarakkara. In the circumstances I am inclined to allow the request for transfer. Resultantly, this Petition is allowed. O.P. No.550 of 2007 and O.P(G&W) No.516 of 2010 are withdrawn from Family Court, Nedumangad and are made over to Family Court, Kottarakkara. The transferor court shall transmit the records of the said cases to the transferee court with intimation to the counsel on both sides regarding date of appearance in the transferee court. Petitioner shall produce the child in Family Court, Kottarakkara as directed by Family Court, Nedumangad in O.P. No.550 of 2007. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv