Divya Nair v. Nitin Radhakrishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 **Tr.P(C).No. 371 of 2010** OP.621/2010 of FAMILY COURT,KOZHIKODE PETITIONER: RESPONDENT ---------------------DIVYA NAIR, AGED 24 YEARS, D/O. UDAYABHASKAR, DIVYODAYAM, KALLEPPULLY ROAD, PUTHUR, PALAKKAD - 678 001, PRESENTLY RESIDING AT VINAYAM, 167, RAMNAGAR, NAGPUR, MAHARASTHRA - 440 033. BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENT: PETITIONER ------------------------- NITIN RADHAKRISHNAN, AGED 25 YEARS, S/O.V.M. RADHAKRISHNAN NINETITA - 18/714, DPO ROAD - YAKKARA, PALAKKAD - 678 014, NOW RESIDING AT APARTMENT NO.4 E, 4TH FLOOR, SKYLINE OCEANIC APARTMENT BUILDING NEAR SEA QUEEN HOTEL (BEACH), KOZHIKODE-679 011. SENIOR ADV. SRI.K.P.DANDAPANI SMT.P.G.BABITHA SRI.BINOY VASUDEVAN THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON 25/02/2011 PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------Tr.P.(C). NO. 371 OF 2010 -----------------------------------------------------Dated this the 25[th] day of February, 2011** ## **O R D E R** The petitioner is the wife of the respondent. The marriage between the petitioner and the respondent was solemnized on 30.12.2007 at Palakkad. 2. The petitioner as well as the respondent belong to Palakkad District. The petitioner belongs to Puthur in Palakkad District. The respondent belongs to Yakkara in Palakkad District. According to the petitioner, due to the various events which took place, the parties started living separately from June 2010 onwards. The petitioner is now residing with her parents at Nagpur, Maharashtra. The respondent is residing in an apartment at Kozhikode. 3. The respondent/husband filed O.P.No.621 of 2010 before the Family Court, Kozhikode against the petitioner under Section 12 (1)(c) of the Hindu Marriage Act, for a decree of nullity of the Tr.P.(C) NO.371 OF 2010 :: 2 :: marriage. The petitioner, who is the respondent in that proceeding, entered appearance. O.P.No.621 of 2010 was filed before the Family Court, Kozhikode stating that the cause of action arose at Kozhikode where the parties last resided together. The petitioner herein disputed that statement and contended that the Family Court, Kozhikode has no jurisdiction. This contention raised by the petitioner herein was negatived by the Family Court. The proceedings before the Family Court have reached the stage of evidence. The respondent/husband has filed chief affidavit in lieu of his examination in chief. 4. This Transfer Petition is filed by the petitioner/wife to transfer O.P.No.621 of 2010, pending before the Family Court, Kozhikode, to the Family Court, Palakkad. The reasons stated by her for such transfer are the following: (1) Both parties belong to Palakkad; (2) The marriage took place within the jurisdiction of the Family Court, Palakkad; (3) The respondent (husband) is permanently residing at Palakkad; (4) The father of the petitioner herein, who is a businessman having business concerns at various places including Nagpur, is having his own residential premises at Nagpur as well as at Palakkad. The petitioner can come from Tr.P.(C) NO.371 OF 2010 :: 3 :: Nagpur to Palakkad and stay in that house and attend the Family Court, Palakkad, if the case is transferred to the Family Court, Palakkad; (5) The petitioner is not in a position to attend the Family Court, Kozhikode as she has no relative or friend residing at Kozhikode. 5. The application for transfer is hotly contested by the respondent. It is submitted that the Transfer Petition is filed with malicious intention. The Family Court, Kozhikode overruled the objection raised by the petitioner herein that the said Family Court has no territorial jurisdiction. However, that fact is suppressed in the Transfer Petition and it is again contended that the Family Court, Palakkad alone has jurisdiction. It is contended that counselling was over and the case is ready for trial. At that stage, the Transfer Petition is filed without any bonafides. It is contended that the father of the petitioner is a highly influential businessman and he is a member of the National Executive of a political party. He has great influence in the area. Therefore, the respondent is afraid to go to Palakkad and attend the Family Court, Palakkad. In these circumstances, he preferred the petition before the Family Court, Kozhikode. It would be difficult for the respondent/husband to Tr.P.(C) NO.371 OF 2010 :: 4 :: appear before the Family Court, Palakkad in the peculiar circumstances of the case and because of the political influence of the father of the petitioner. The respondent/husband also submitted that his father filed a suit against him and obtained an order of injunction restraining him from entering into the house of his father. Therefore, he is not in a position to go to Palakkad, stay there and attend the Family Court, Palakkad. It is pointed out by the counsel for the respondent that there is no averment in the Transfer Petition that the petitioner/wife was threatened or coerced when she appeared before the Family Court, Kozhikode. It is also stated in the counter affidavit thus: “12. I beg to submit that only for the purpose of avoiding the appearance for Cross Examination, this petition is filed. I am ready and willing to examine her by taking out a Commission at my expense, if the same will redress the grievance of the petitioner.” 6. Both parties did not state in their pleadings in the Transfer Petition about the pendency of O.P.No.559 of 2010 before the Family Court, Palakkad. That Original Petition was filed by the respondent/husband for recovery of a sum of ` 35 lakhs from the Tr.P.(C) NO.371 OF 2010 :: 5 :: petitioner/wife and her father. O.P.No.559 of 2010 is pending before the Family Court, Palakkad. However, in the chief affidavit filed by the husband before the Family Court, Kozhikode, mention is made about O.P.No.559 of 2010 pending before the Family Court, Palakkad. Counsel appearing for both sides admitted that O.P.No.559 of 2010 is pending before the Family Court, Palakkad. 7. After hearing the counsel on either side in great detail, a query was made to them as to whether the parties could agree to transfer both the cases; one pending before the Family Court, Kozhikode and the other pending before the Family Court, Palakkad, to the Family Court, Thrissur so that the interests of both parties could be safeguarded. Time was also granted to get instructions. Sri.T.Krishnanunni, learned senior counsel appearing for the petitioner did not offer any remarks on this aspect. Sri.K.P.Dandapani, learned senior counsel appearing for the respondent, submitted that O.P.No.559 of 2010 can be transferred to the Family Court, Kozhikode. Acceptance of that submission would result in granting an order of transfer for the benefit of the respondent even without making an application for transfer. It is true that the power of transfer can be exercised suo motu also. I think it Tr.P.(C) NO.371 OF 2010 :: 6 :: would be convenient for both parties if both the cases are tried by the Family Court, Thrissur. However, from the submissions made before the Court, it is revealed that the father of the petitioner is also a party in O.P.No.559 of 2010 pending before the Family Court, Palakkad. He is not a party in the Transfer Petition. Therefore, I am of the view that the suo motu power to transfer need not be exercised by me to transfer O.P.No.559 of 2010. 8. Now coming to the question of transfer on the merits, I am of the view that it would be just and proper to transfer O.P.No.621 of 2010 pending before the Family Court, Kozhikode to the Family Court, Thrissur, taking into account the convenience of both parties and the distance between the residence of the petitioner at Palakkad and the residence of the respondent at Kozhikode. It is not proper to transfer the case to the Family Court, Palakkad in the light of the apprehension voiced by the respondent about the political influence which the petitioner's father wields in the area. At the same time, it would be harsh if the petitioner were to go to Kozhikode and contest the proceedings there. ## 9. The Supreme Court in **Sumitha Singh** v. **Kumar Sanjay** Tr.P.(C) NO.371 OF 2010 :: 7 :: **and another** (2001) 10 SCC 41), **Mangla Patil Kale** v. **Sanjeev Kumar Kale** ((2003) 10 SCC 280) and **Rajwinder Kaur** v. **Balwinder Singh** ((2003) 11 SCC 726) held that the convenience of the wife should be taken note of while considering the question of transfer. Accordingly, the Transfer Petition is partly allowed. O.P.No.621 of 2010 pending before the Family Court, Kozhikode shall stand transferred to the Family Court, Thrissur. The Family Court, Kozhikode shall transmit the records in O.P.No.621 of 2010 to the Family Court, Thrissur. ## **(K.T.SANKARAN) Judge** ahz/