Divya L. v. Naveen Srigunan & Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ## `TR.P(C) NO. 447 OF 2021` ``` AGAINST OP(G&W) NO.414/2021 OF FAMILY COURT, KASARAGOD ``` ## `PETITIONER/RESPONDENT:` ``` DIVYA L., AGED 43 YEARS, D/O. DR. T.S. GOPALAKRISHNAN, RESIDING AT SRI SAILAM, KEERTHI NAGAR, H. NO.76, ASRAMOM, KOLLAM-691 008. ``` ``` BY ADVS.JOHNSON GOMEZ R.ANANTHAPADMANABAN UTHARA A.S ``` ## `RESPONDENTS/PETITIONER:` ``` NAVEEN SRIGUNAN, S/O. K.M. SRIGUNAN, RESIDING AT SRI SHUBH, AINGOTH PADNEKKAD P.O., KANHANGAD, KASARAGOD-671 315. ``` ## `BY ADV JAWAHAR JOSE` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 19.07.2022, ALONG WITH Tr.P(Crl.).68/2021, 67/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` -:2:- ``` ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ``` TR.P(CRL.) NO. 67 OF 2021 IN MC NO.13/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM ``` ## `PETITIONERS/RESPONDENTS 1 TO 3:` ``` 1NAVEEN SRIGUNAN, AGED 44 YEARS, S/O.K.M.SRIGUNAN, RESIDING AT SRI SHUBH, PADNEKKAD (P.O), KANHANGAD, KASARAGOD DISTRICT, PIN - 671 328. ``` ``` 2K.M.SRIGUNAN, AGED 65 YEARS, S/O.KANAYI KUNHAMBU, RESIDING AT SRI SHUBH, PADNEKKAD (PO), KANHANGAD, KASARAGOD DISTRICT, PIN - 671 328. ``` ``` 3SHUBHA SRIGUNAN, AGED 60 YEARS, W/O.K.M.SRIGUNAN, RESIDING AT SRI SHUBH, PADNEKKAD (PO), KANHANGAD, KASARAGOD DISTRICT, PIN - 671 328. ``` ``` BY ADVS.JAWAHAR JOSE CISSY MATHEWS SARUN RAJAN ``` ## `RESPONDENT/PETITIONER:` ``` DR. DIVYA L, AGED 43 YEARS, D/O.DR.T.S.GOPALAKRISHNAN, RESIDING AT SRI SAILAM, HOUSE NO.76, KEERTHI NAGAR, ASRAMOM (PO), KOLLAM DISTRICT, PIN -691 002. ``` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 19.07.2022, ALONG WITH Tr.P(C).447/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:3:- ``` # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ## `TR.P(CRL.) NO. 68 OF 2021` ``` IN MC NO.40/2021 OF FAMILY COURT,KOLLAM ``` ## `PETITIONER/RESPONDENT:` ``` NAVEEN SRIGUNAN, AGED 44 YEARS, S/O.K.M.SRIGUNAN, RESIDING AT SRI SHUBH, PADNEKKAD (P.O.), KANHANGAD, KASARAGOD DISTRICT, PIN - 671 328. ``` ``` BY ADVS.JAWAHAR JOSE CISSY MATHEWS SARUN RAJAN JARIN JOSEPH ``` ## `RESPONDENT/PETITIONER:` ``` NIVEDHYA TRISTHA, AGED 7 YEARS REPRESENTED BY HER MOTHER, NEXT FRIEND GUARDIAN DR.DIVYA L., AGED 43 YEARS, D/O.DR.T.S.GOPALAKRISHNAN, RESIDING AT SRI SAILAM, HOUSE NO.76, KEERTHI NAGAR, ASRAMOM (P.O.), KOLLAM DISTRICT, PIN - 691 002. ``` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 19.07.2022, ALONG WITH Tr.P(C).447/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:4:- ``` Dated this the 19[th] day of July,2022 ## **C O M M O N O R D E R** As these transfer petitions arise out of the marital disputes between the husband and wife, they are being disposed of by this common order. 2. Tr.P.(C)No.447/2021 is filed by the wife against the husband to transfer O.P.(G&W)No.414/2021 from the Family Court, Kasaragod, to the Family Court, Kollam, Tr.P.(Crl.)No.68/2021 is filed by the husband against the wife to transfer M.C.No.40/2021 from the Family Court, Kollam, to the Family Court, Kasaragod and Tr.P.(Crl.)No.67/2021 is filed by the husband and his parents against the wife to transfer M.C.No.13/2021 from the Judicial First Class Magistrate Court-II, Kollam to the Judicial First Class Magistrate Court-I, Hosdurg. The parties and the pleadings are, for the sake of convenience, referred to ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:5:- ``` in Tr.P.(C)No.447/2021, since it is the comprehensive transfer petition. 3. The petitioner is the wife of the respondent. Their marriage was solemnized on 16.05.2012. They have a daughter born in the wedlock on 07.02.2014. The petitioner is a permanent resident of Kollam. Due to the matrimonial cruelty that was meted out on the petitioner by the respondent, she was constrained to file M.C. No.13/2021(Annexure-A1) before the Judicial First Class Magistrate Court-II, Kollam, against the respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005. She has also filed M.C.No.40/2021(Annexure-A2) before the Family Court, Kollam, against the respondent, for an order of maintenance for herself and the child. The respondent has now filed O.P.(G&W)No.414/2021(Annexure-A3), against the petitioner, before the Family Court, ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:6:- ``` Kasaragod, seeking an order for the custody of the child. The child is studying in Mount Carmel Anglo-Indian School, Kollam. The child has medical problems and is being treated at Amrita Institute of Medical Sciences. It is practically impossible for the petitioner to travel all the way from Kollam to Kasaragod, to defend Annexure-A3. Hence, the transfer petition. 4. The respondent and his parents have filed Tr.P.(Crl.)No.67/2021 and the respondent has filed Tr.P. (Crl.)No.68/2021, inter alia, contending that they are permanent residents of Kasaragod. The respondent’s parents are senior citizens. It would be difficult for them to travel from Kasaragod to Kollam, to contest Annexures-A1 and A2. Therefore, Tr.P.(Crl.)Nos.67 & 68/2021 may be allowed. 5. Heard; Sri. Johnson Gomez, the learned ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:7:- ``` counsel appearing for the petitioner and Sri.Jawahar Jose, the learned counsel appearing for the respondent and his parents. 6. The point is which of the transfer petitions have to be allowed?. 7. Undisputedly, the petitioner has filed Annexures-A1 and A2 before the Judicial First Class Magistrate-II, Kollam and Family Court, Kollam. The petitioner and the child are permanent residents of Kollam. The child is studying in a School at Kollam and is also been suffering from a congenital cardiac disease. 8. The law with respect to transfer of proceedings, particularly matrimonial disputes, is no longer res integra, in view of the categoric declaration of law by the Hon'ble Supreme Court in **Sumitha Sing V. Kumar Sanjay and another** [(2001)10 SCC 41], ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:8:- ``` **Mona Aresh Goel V. Aresh Satya Goel** [(2000) 9 SCC 255], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [AIR 2016 SC 3584], **Santhini V. Vijaya Venkatesh** [2017 (4) KLT 415 (SC)] **Valsal Nisha v. Rajesh Soman Nair** [2020 (8) KLR 475]. 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. 9. On a consideration of the pleadings and materials on record, and taking note of the fact that it was the petitioner who had initiated the proceedings at first and that the petitioner and child are residing in Kollam, I am of the view that it is the comparative hardship of the petitioner and child that has to be given due preference than the hardship of the respondent and his parents. Therefore, I hold that ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:9:- ``` Annexure-A3 is to be transferred from the Family Court, Kasaragod, to the Family Court, Kollam, so that Annexures A1 and A3 can be consolidated and jointly tried, which would save precious judicial time and avoid conflict of decisions. In the result, I pass the following orders: - (i) Tr.P(C) No.447/2021 is allowed, by ordering the transfer of O.P.(G&W)No.414/2021 from the Family Court,Kasaragod to the Family Court, Kollam. - (ii) Tr.P(Crl) Nos.67 & 68/2021 are dismissed. - (iii) The parties would be at liberty to move the Family Court, Kollam, and seek for the consolidation and joint trial of all the cases between them. - (iv) The Registry shall forthwith forward a copy of the common order to the Family Court, Kasaragod with instructions to transmit the records in O.P.(G&W)No.414/2021 to the ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:10:- ``` ## Family Court, Kollam. - (v) The Family Court, Kollam, shall, immediately on receipt of the records in O.P. (G&W)No.414/2021, post the case along with M.C.No.40/2021. - (vi) The respondent would be at liberty to move the Family Court, Kollam, and seek for dispensation of his personal appearance. Sd/- ## **C.S.DIAS,JUDGE** DST/19.07.22 //True copy/ P.A.To Judge ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:11:- ``` ## `APPENDIX OF TR.P(C) 447/2021` ## `’ - PETITIONER S ANNEXURES:` ``` ANNEXURE A1A TRUE COPY OF THE ORDER DATED 19TH APRIL 2021 IN CMP NO.189/2021 IN MC NO. 13/2021 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE-II, KOLLAM. ``` ``` ANNEXURE A2THE TRUE COPY OF THE PETITION FILED BY THE RESPONDENT ON BEHALF OF HER MINOR CHILD NIVEDYA THRISTHA, CLAIMING MAINTENANCE BEFORE THE FAMILY COURT, KOLLAM. ANNEXURE A3A TRUE COPY OF THE PETITION IN OP (G&W) NO. 414/2021 BEFORE THE FAMILY COURT OF KASARAGOD. ``` ``` RESPONDENT’S EXHIBITS: NIL ``` ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:12:- ``` ## `APPENDIX OF TR.P(CRL.) 67/2021` ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF THE PETITION IN M.C.NO.13/2021 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM. ``` ``` ANNEXURE A2TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS IN M.C.NO.13/2021. ``` ``` RESPONDENT’S EXHIBITS: NIL ``` ``` Tr.P.(C)Nos.447/2021 & Tr.P.(Crl.)Nos.67 & 68/2022 ``` ``` -:13:- ``` ## `APPENDIX OF TR.P(CRL.) 68/2021` ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF THE PETITION IN M.C.NO.40/2021 ON THE FILES OF FAMILY COURT, KOLLAM. ``` ``` ANNEXURE A2TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS IN M.C.NO.40/2021. ``` ``` RESPONDENT’S EXHIBITS: NIL ```