Didimose and others v Maneesha Thomas

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 TR.P(C) NO. 151 OF 2020 ``` ``` TGOP 367/2020 OF FAMILY COURT,ERNAKULAM ``` ## **`PETITIONERS:`** ``` 1DIDIMOSE, AGED 56 YEARS S/O.THOMAS, CHEPPUKALAYIL HOUSE, POOVANCHIRA, CHUVANNAMANNU, PATTIKAD P.O., THRISSUR DISTRICT, PIN - 680 652. 2GRACY, AGED 53 YEARS W/O.DIDIMOSE, CHEPPUKALAYIL HOUSE, POOVANCHIRA, CHUVANNAMANNU, PATTIKAD P.O., THRISSUR DISTRICT, PIN - 680 652. 3THOMAS, AGED 31 YEARS S/O.DIDIMOSE, CHEPPUKALAYIL HOUSE, POOVANCHIRA, CHUVANNAMANNU, PATTIKAD P.O., THRISSUR DISTRICT, PIN - 680 652. BY ADVS. G.SANTHOSH KUMAR (P). SRI.V.R.SASSIDHARAN ``` ## **`RESPONDENT/`** ``` MANEESHA THOMAS, AGED 25 YEARS D/O.MARY, NOW RESIDING AT KURISINKAL HOUSE, SASTHRI ROAD, KUMBALANGHI P.O., KOCHI - 682 007. ``` ``` BY ADV. SMT.P. SAREENA GEORGE ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH Tr.P(C).184/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Tr.P (C) Nos. 151 & 184 of 2020 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA,1944 TR.P(C) NO. 184 OF 2020 ``` ``` OP 265/2020 OF FAMILY COURT,THRISSUR ``` ## **`PETITIONER:`** ``` MANEESHA THOMAS AGED 25 YEARS D/O.MAXY, NOW RESIDING AT KURISINKAL HOUSE, SASTHRI ROAD, KUMBALANGHI P.O., KOCHI-682007. BY ADV P.SAREENA GEORGE ``` ## **`RESPONDENT:`** ``` THOMAS AGED 31 YEARS S/O.DIDIMOSE, CHEPPUKALAYIL HOUSE, POOVANCHIRA, CHUVANNAMANNU, PIN-680652, THRISSUR DISTRICT. ``` ``` BY ADV. SRI.G. SANTHOSH KUMAR ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2022, ALONG WITH Tr.P(C).151/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Tr.P (C) Nos. 151 & 184 of 2020 ## **COMMON ORDER** As the transfer petitions are between the same parties and arise out of the marital disputes between Thomas (husband) and Maneesha Thomas (wife), they are disposed of by this common order. 2. Tr.P.(C) No.184/2020 is filed by the wife to transfer O.P.No.265/2020 filed by the husband from the Family Court, Thrissur to the Family Court, Ernakulam. Tr.P.(C) No.151/2020 is filed by the husband and his parents to transfer O.P. No.367/2020 from the Family Court, Ernakulam to the Family Court, Thrissur. The parties are, for the sake of convenience, referred to as per the status in Tr.P.(C)No.151/2020, which is treated as a leading case. 3. The petitioners’ case, in brief, in the memorandum of transfer petition is that, the 4 Tr.P (C) Nos. 151 & 184 of 2020 respondent is the wife of the third petitioner. The petitioners 2 and 3 are the parents of the third petitioner. The third petitioner and the respondent have a 2 ½ year old son born in their wedlock. The respondent has filed O.P.No.367/2020 before the Family Court, Ernakulam, against the petitioners, to grant her the permanent custody of her son. The first petitioner is an auto driver, the third petitioner is driver in a company and the second petitioner is a cancer patient. The respondent has taken away the child without the knowledge of the third petitioner. The third petitioner has filed O.P. No.265/2020 before the Family Court, Thrissur for a decree of restitution of conjugal rights. It will be difficult for the petitioners to contest O.P. No.367/2020 before the Family Court, Ernakulam. Hence, Tr.P.C. No.151/2020 is filed. 4. The respondent-wife has filed Tr.P.C. No.184/2020 to transfer O.P No.265/2020. She has alleged that the third petitioner is an alcoholic, that he 5 Tr.P (C) Nos. 151 & 184 of 2020 used to brutally assault her, that he had sold her gold ornaments and that the police have registered a case against the third petitioner. Apprehending that the child may be forcefully taken away by the petitioners, the respondent filed O.P. No.367/2020 before the Family Court, Ernakulam – the court of competent jurisdiction - as the child is ordinarily residing within the said court. It is a counter blast to the above proceeding, the third petitioner has filed O.P.No.265/2020, without any bonafides. There is no person to chaperone the respondent and the child from Ernakulam to Thrissur to contest O.P.No.265/2020. Hence, O.P. No.265/2020 may be transferred from the Family Court, Thrissur to the Family Court, Ernakulam. 5. Heard; Sri G. Santhosh Kumar, the learned counsel appearing for the petitioners and Smt. Sareena George, the learned counsel appearing for the respondent. 6 Tr.P (C) Nos. 151 & 184 of 2020 6. The question is which transfer petitions is to be allowed. 7. The law with respect to transfer of proceedings, particularly matrimonial disputes, is no longer resintegra, in view of the categoric declaration of law by the Hon'ble Supreme Court in **Sumitha Sing V. Kumar Sanjay and another** [2002 KHC 1889], **Mona Aresh Goel V. Aresh Satya Goel** [2000 KHC 1835], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [2016 KHC 6489], **Santhini V. Vijaya Venkatesh** [2017 (5) KHC 48] and **Aiswarya N.C.V. v. A.S. Saravana Karthik Sha** [2022 (5) KHC 185(SC)]. The Hon’ble Supreme Court has held that it is the convenience of the woman and children that has to be looked into, while ordering the transfer of a case from one Court to another. 8. On an analysis of the pleadings and materials on record in both the transfer petitions, it can be seen that the child is permanently residing in Kumbalanghi 7 Tr.P (C) Nos. 151 & 184 of 2020 in the parental house of the respondent-wife. The respondent has already filed O.P. No.367/2020 before the Family Court, Ernakulam, for the permanent custody of the child. The petitioners are contesting the proceedings before the said court. It is conceded that the third petitioner is now employed abroad. As far as the third petitioner is concerned, who is the contesting party, it is immaterial whether the cases are tried before the Family Court, Thrissur or at the Family Court, Ernakulam. Moreover, it is the paramount welfare, the best interest and the convenience of the child that has to be looked into, while ordering the transfer of the cases from one court to another court. The inconvenience of the petitioners 1 and 2 can be averted by dispensing with their personal appearance. 9. In the above legal and factual background, I am of the definite view that the discretionary powers of this Court has to be exercised in favour of the respondent and the child. Consequently, Tr.P. 8 Tr.P (C) Nos. 151 & 184 of 2020 (C)No.184/2020 is to be allowed by ordering the transfer of O.P No.265/2020 from the Family Court, Thrissur to the Family Court, Ernakulam, so that the case can be consolidated and jointly tried with O.P. No.367/2020, which would save precious judicial time, avoid multiplicity of proceedings and conflict of decisions. In the result, I pass the following orders:- (i) Tr.P.(C) No.151/2020 is dismissed. (ii) Tr.P.(C)No.184/2020 is allowed by ordering the transfer of O.P. No.265/2020 from the Family Court, Thrissur to the Family Court, Ernakulam. (iii) The petitioners 1 and 2 would be at liberty to move the Family Court, Ernakulam and seek for the dispensation of their personal appearance. (iv) The Registry shall forward a copy of this common order to the Family Court, Thrissur with instructions to forthwith transmit the records in O.P. No.265/2020 to the Family Court, Ernakulam. 9 Tr.P (C) Nos. 151 & 184 of 2020 (v) ) The Family Court, Ernakulam shall, immediately on the receipt of the records in O.P. No. 265/2020, post the cases along with O.P.No.367/2020. Sd/- **C.S.DIAS, JUDGE** rmm/03/11/2022 10 Tr.P (C) Nos. 151 & 184 of 2020 ## **`APPENDIX OF TR.P(C) 184/2020`** ``` PETITIONER ANNEXURES ANNEXURE ATRUE COPY OF OP 265/2020 PENDING BEFORE THE FAMILY COURT, THRISSUR. ``` 11 Tr.P (C) Nos. 151 & 184 of 2020 ## **`APPENDIX OF TR.P(C) 151/2020`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1TRUE COPY OF THE G.O.P.NO.367/2020 BEFORE THE FAMILY COURT, ERNAKULAM FILED BY THE RESPONDENT. ``` ``` ANNEXURE A2TRUE COPY OF THE I.A.NO.827/2020 IN G.O.P.NO.367/2020 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. ``` ``` ANNEXURE A3TRUE COPY OF THE RELEVANT PAGES OF MEDICAL REPORT AND O.P.TICKET ISSUED FROM THE COCHIN CANCER RESEARCH CENTRE. ``` ``` ANNEXURE A4TRUE COPY OF THE O.P.NO.265/2020 PENDING BEFORE THE FAMILY COURT, THRISSUR PREFERRED BY THE 3RD PETITIONER. ```