Bincy John George v. John George

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939** **OP 475/2017 of FAMILY COURT, PALA TO FAMILY COURT,NEDUMANGADU THIRUVANANTHAPURAM** **----------** ## **PETITIONER/PETITIONER** **----------------------** **BINCY JOHN GEORGE, AGED 37, MYLAKKUZHY VEEDU, EDAVACHAL, PANTHA P.O., 695572, VAZHICHAL VILLAGE, KATTAKADA, THIRUVANANTHAPURAM DISTRICT, (MUDANTHIYANIYIL VEEDU, KANJIRAMATTOM, CHENGALAM (VIA), KOTTAYAM DISTRICT.** **BY ADV.SRI.S.BHANU KRISHNAKUMAR** ## **RESPONDENT/RESPONDENT:** **---------------------** **JOHN GEORGE, MUDANTHIYANIYIL, KANJIRAMATTOM, CHENGALAM (VIA), KOTTAYAM DISTRICT-686585.** **BY ADV. SRI.ABRAHAM THOMAS (PUTHURAN)** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.V.** ## **Tr.P(C).No. 45 of 2018 ----------------------** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** ## **---------------------** - **ANNEXURE A: TRUE COPY OF THE PETITION IN O.P.NO 475/2017 ON THE FILE OF FAMILY COURT,PALA.** - **ANNEXURE B: TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED TO THE PETITIONER'S DAUGHTER ARSHA.S.B FROM MEDICAL OFFICER DEPARTMENT OF CHILD HEALTH, MEDICAL COLLEGE, THIRUVANANTHAPURAM DATED 21.12.2015.** ## **RESPONDENTS ANNEXURES:** **---------------------** **R1(A) TRUE COPY OF THE MARRIAGE AGREEMENT BETWEEN THE PETITIONER AND THE SAID SABUMON.** **R1(B) TRUE COPY OF THE CERTIFICATE ISSUED BY CARITHAS HOSPITAL, KOTTAYAM TO THE RESPONDENT.** **/TRUE COPY/** **K.V. P.S.TO JUDGE 21.03.2018** ## **ALEXANDER THOMAS, J.** ================== Tr.P(C).No. 45 of 2018 ================== Dated this the 2[nd] day of March, 2018 ## **O R D E R** The Prayer in this Transfer Petitioner (Civil) is as follows; _“The O.P. No.475/2017, pending before the Family Court, Pala may be transferred to Family Court, Nedumangadu (Thiruvananthapuram District);_ 2. Heard Sri.S.Bhanukrishna Kumar, learned counsel appearing for the petitioner and Sri.Abraham Thomas (Puthuran) learned counsel appearing for the respondent. 3. The petitioner herein is the daughter of the respondent herein. The petitioner has preferred O.P.No.475 of 2017 before the Family Court, Pala, seeking recovery of money and gold ornaments. It is the case of the petitioner that she had married, which was not to the liking of her parents and that the parents had never given her any financial support and later, after the marriage, the respondent (father) had taken a personal loan of Rs. 21 Lakhs from her and that for her sister's marriage, she had entrusted 50 sovereigns of gold ornaments to her father with the promise that the money and the gold ornaments would be returned back to her. That earlier, when her child was seriously ill, her father had never given any financial support in spite of her request, etc. and that certain other allegations are made against the father that it is learnt by the petitioner that the father is attempting to sell off the properties in their native place and is planning to Tr.P(C)45/18 - : 2 :- elope with another lady, etc. 4. Anx.A O.P.No.475 of 2017 has been filed by the petitioner before the Family Court, Pala. She would state that she is presently residing at Kattakkada, in Thiruvananthapuram district and she finds it extremely difficult and arduous to travel more than 200 Kms from her residential locality in Kattakkada, Thiruvananthapuram to attend to the litigative proceedings in the Family Court, Pala. It is on this premise that she has filed the instant petition seeking transfer of the case from the Family Court, Pala to the Family Court, Nedumangad. 5. The plea for transfer is seriously opposed by the respondent (father). The respondent has filed counter affidavit through his counsel. It is pointed out by Sri.Abraham Thomas Puthuran, learned counsel for the respondent on the basis of the pleadings in the counter affidavit of the respondent that the allegations raised in the above Original Petition are absolutely false and ill-motivated and that in the incidents of alleged borrowal by the father from the petitioner has never taken place. That even going by the averments of the petitioner in her Original Petition, her case is that she had married without the consent of her parents and that it was not liked by the parents and further that the father had never helped her financially including at the time when her child had faced some serious ailments and that after 7 or 8 years after her marriage, she had advanced a personal loan of Rs.21 lakhs and had given 50 sovereigns of gold ornaments Tr.P(C)45/18 - : 3 :- to the father, etc. is unbelievable for the simple reason that a daughter who claims that her parents had never helped her financially even at the time of marriage or during the subsequent illness of her child. etc., could not ordinarily be so liberal and generous to give a personal loan of Rs. 21 lakhs and 50 sovereigns of gold ornaments to the father, etc. That even though in the pleadings of the Original Petition, the income of the petitioner is stated to be from her husband's salary and that her other sources of income are not in any manner disclosed in the petition and therefore it is quite unbelievable that the petitioner who is not getting any financial support from her parents would be so generous enough to hand over such a huge amount of Rs.21 lakhs and 50 sovereigns of gold ornaments, etc. long after her marriage. Further, it is stated that the respondent herein has learnt that the petitioner has not entered into a legally solemnized marriage and that she has entered into only a registered agreement with her so-called husband to live as man and wife and that there are no averments either in this petition or in the Original Petition (filed before the Family Court) that she has registered the marriage in accordance with provisions contained in the Special Marriage Act, etc. Further that the allegation raised by the petitioner that the respondent is surreptitiously planning to sell off his property in his native place and that he is planning to elope with another lady, etc. are only false allegations and that it is only to make character assassination of the respondent, due to the vindictive attitude of the Tr.P(C)45/18 - : 4 :- petitioner. That the respondent and her wife could not co-operate with the proposal mooted by the petitioner only because she was entering into only registered agreement with her partner for living together, as man and wife, and that as concerned parents, they had given necessary advice to her only in discharge of their parental responsibilities, which has been misunderstood by the petitioner, which has resulted in the strained relationship between the parties. The registered agreement to live together entered into between the petitioner and the so-called husband living together as man and wife, is as per Ext. R1 (a) dated 23-08-2007. More importantly, it is submitted by Sri.Abraham Mathew Puthuran, learned counsel appearing for respondent that the respondent is suffering from serious cardiac problems, as evident from Anx.R1 (b) certificate dated 0802-2018 issued by the Caritas Hospital, Thellakom in Kottayam district, wherein it has been certified by the qualified Doctor of Cardiology that the respondent is suffering from coronary artery disease & hypertension and that he has underwent coronary artery bypass and some other procedures and that he needs periodic check up and that he has to avoid stressful activities, etc. The said medical certificate dated 08-02-2018 issued by the Cardiologist of the Caritas Hospital, Kottayam, reads as follows; > _“Mr.John George (Hospital No. 429181) has Coronary Artery Disease and hypertension. He underwent Coronary Artery Bypass Graft, LIMA to LAD, SVG to Diagonal and Ramus on 23/05/2012. He needs periodic check up and to attend Cardiology OPD at regular interval. He needs to avoid stressful activities”._ 6. Accordingly, it is submitted by Sri. Abraham Mathew Tr.P(C)45/18 - : 5 :- Puthuran, learned counsel for the respondent that it will be extremely risky and adverse for the health of the respondent, if the case is transferred from the Family Court, Pala to the Family Court, Nedumangad as there is none in the family to accompany the respondent to attend to the litigative proceedings, if the case is transferred to such a far off place like Nedumangad. 7. In the judgments of the Apex Court as in _**Sumitha Singh v. Kumar Sanjay & Anr.**_ reported in (2001) 10 SCC 41, _**Rajwinder Kaur v. Balwinder Singh**_ reported in (2003) 11 SCC 726, _**Mona Aresh Goel v. Aresh Satya Goel**_ , reported in (2000) 9 SCC 255, _**Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap**_ , reported in AIR 2016 SC 3584, etc. it has been held that in the matter of transfer of cases from one Family Court to another, convenience of the wife should be given special consideration by the courts, etc. The said dictum so laid down in many court rulings are in the context of matrimonial litigative proceedings mainly between husband and wife. In the instant case, the disputants in the litigative proceedings are a daughter and a father. One of the prime considerations in invoking the transfer jurisdiction is to look at the overall convenience of all the parties concerned and the witnesses. It is true that the petitioner (daughter) is a lady now aged at 37, whereas the respondent (father) is now aged more than 65 years, who is suffering from cardiac ailments. The averment of the respondent that he is suffering from serious Tr.P(C)45/18 - : 6 :- cardiac ailments and has been advised not to undergo any stressful travel as certified in Anx.R1 (b) issued by a qualified cardiologist in a leading medical institution, has not been in any manner denied or rebutted by the petitioner (daughter). True that the decision making process is not easy but is a hard choice. But, the fact of the matter is that the respondent is in his mid sixties, a senior citizen, who is suffering from serious cardiac ailments and it may not be right and proper for this Court to allow this transfer petition and it will inevitably lead a situation whereby such an aged cardiac patient will have to travel more than 200 kms from Pala to Nedumangad and that too, by using at least 3 buses. 8. In the light of these aspects, this Court need not consider the allegations and counter allegations made by the parties. All those are matters regarding the merits of the litigative proceedings pending before the Family Court. Mainly on the ground that the respondent is an aged cardiac patient, this Court is not inclined to allow the prayer for transfer. However, at the same time, this Court cannot ignore the difficulties and hardships that may be faced by the petitioner, who is a lady, who has to travel from 200 kilometers from Nedumangad to Pala. Accordingly, the difficulties on both sides could be alleviated by issuing necessary directions in the matter of personal exemption. In the light of these aspects, it is ordered that the plea for transfer as made out in this petition is not acceded to. However, it is ordered that parties will be at liberty to file appropriate Tr.P(C)45/18 - : 7 :- applications before the Family Court, Pala, seeking grant of exemption from personal appearance, in which case, the said court will consider those applications favourably, provided the parties are represented through their Advocates. 9. Before parting of this case, this Court would only venture to suggest to the disputing parties to amicably settle their disputes, instead of spending their energies in litigative proceedings and both parties should realize that they should rise to the occasion and make necessary amends so that the relationship between the daughter and the father could at least be partially restored and a quietus should be given to the litigative proceedings through mediatory efforts. With these observations and directions, the above Transfer Petition (Civil) will stand dismissed. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge