Dr. Abhijna U.G v. Vijay Mahadevan

**TR.P(C) NO. 546 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 TR.P(C) NO. 546 OF 2021** **AGAINST O.P(DIV) No.46/2021 OF FAMILY COURT,KOZHIKODE** ## **PETITIONER/RESPONDENT:** DR.ABHIJNA.U.G, AGED 36 YEARS D/O GEETHA, V.P. 8/25, PUNYAM, POTTAYIL, NEAR VILAVOORKKAL VILLAGE OFFICE, MALAYINKEEZHU P.O.THIRUVANANTHAPURAM-695 571. BY ADVS. NAVEEN RADHAKRISHNAN SAREEN S. ## **RESPONDENT/PETITIONER:** VIJAY MAHADEVAN AGED 38 YEARS S/O LATE RADHAKRISHNAN NAIR, DEVELOPMENT OFFICER, BRANCH OFFICE, LIC BRANCH OFFICE CODE 0807, JEEVAN KAIRALI P.V.SAMY CROSS ROAD, CHALAPPURAM, KOZHIKKODE673 002. BY ADV SRINATH GIRISH. P THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **TR.P(C) NO. 546 OF 2021** **2** ## **ORDER** The transfer petition is filed under Section 24 of the Code of Civil Procedure, seeking to transfer O.P No.46/2021 (Annexure-A3) from the Family Court, Kozhikode to the Family Court, Thiruvananthapuram. 2. The petitioner's case, in brief, in the memorandum of transfer petition is that; she is the wife of the respondent. They have a one year old daughter born in their wedlock. Due to the matrimonial cruelty meted out on her by the respondent, she has filed O.P(HMA)No.828/2021 (AnnexureA1) before the Family Court, Thiruvananthapuram, seeking a decree for realisation of money and other consequential reliefs. Now the respondent, in order to harass her, has filed Annexure-A3 before the Family Court, Kozhikode seeking a decree of divorce. The petitioner is a permanent resident of Thiruvananthapuram. It is difficult for her to **TR.P(C) NO. 546 OF 2021** **3** travel all along from Thiruvananthapuram to Kozhikode to defend Annexure-A3. The petitioner's parents are septuagenarians and it is difficult for her to travel to and fro with a breast feeding child. Her parents are also suffering from different ailments. At any rate, the respondent has not sought for the transfer of Annexure-A1 from the Family Court, Thiruvananthapuram. Hence, he would have to necessarily appear before the Family Court, Thiruvananthapuram to contest Annexure-A1. Hence the transfer petition. 3. The transfer petition is resisted by the respondent, who has filed a counter affidavit and an additional counter affidavit. He has, inter alia, contended that the petitioner has sent him a text message stating that she would get a promotion and return to Kozhikode in the month of November. If the case is transferred to the Family Court, Thiruvananthapuram, it would cause difficulties to both parties. Hence, the transfer petition may be dismissed. 4. Heard; the learned counsel appearing for the **TR.P(C) NO. 546 OF 2021** **4** petitioner and the learned counsel appearing for the respondent. 5. The learned counsel appearing for the petitioner reiterated the same contentions in the transfer petition and submitted that the respondent has not sought for the transfer of Annexure-A1. Therefore, necessarily, he would have to defend Annexure-A1 at the Family Court, Thiruvananthapuram. Hence, it would always be better to consolidate and jointly try Annexure-A3 along with Annexure-A1, which would save precious judicial time and avoid conflict of decisions. 6. The learned counsel appearing for the respondent vehementally countered the above submissions and relied on the decision of this Court in **Mundekkat v. Vidhya Akhilesh Jayaram** [2021 (6) KLT 1149] to fortify the contention that the convenience of the wife is not an invariable rule for ordering the transfer of a case from one court to another. She has also contended that the temporary residence of the wife cannot be taken into **TR.P(C) NO. 546 OF 2021** **5** consideration for transferring the case from one court to another. To buttress her contention, she relied on the decision of this Court in **Silpa Shaji v. Satheesh K.S** [2022 (1) KHC 691]. 7. The sole point that arises for consideration in the transfer petition is whether this Court should exercise the supervisory jurisdiction of this Court to transfer Annexure -A3 from the Family Court, Kozhikode to the Family Court, Thiruvananthapuram. 8. It is an undisputed fact that the petitioner and the respondent have a one year old daughter born in their wedlock. Similarly, the petitioner has already filed AnnexureA1 before the Family Court, Thiruvananthapuram, seeking a decree for return of money and other consequential reliefs. The respondent has not sought for the transfer of Annexure -A1 from the Family Court, Thiruvananthapuram to the Family Court, Kozhikode. Therefore, necessarily respondent would have to appear before the Family Court, Thiruvananthapuram, to defend Annexure-A1. **TR.P(C) NO. 546 OF 2021** **6** 9. 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)], **Mona Aresh Goel V. Aresh Satya Goel** [(2000) 9 SCC 255], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [AIR 2016 SC 3584] and **Santhini V. Vijaya Venkatesh** [2017 (4) KLT 415 (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. 10. In the light of the above factual and legal background and taking note of the fact that the petitioner has a one year old daughter and she is permanently residing at Thiruvananthapuram, where Annexure-A1 is already pending consideration, I deem it appropriate to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure, to transfer Annexure-A3 from the **TR.P(C) NO. 546 OF 2021** **7** Family Court, Kozhikode to the Family Court, Thiruvananthapuram, so that all the proceedings can be consolidated and jointly tried, which would save precious judicial time and avoid conflict of decisions. In the result, I allow the transfer petition by ordering the transfer of O.P. No.46/2021 from the Family Court, Kozhikode to the Family Court, Thiruvananthapuram. The parties would be at liberty to move the Family Court, Thiruvananthapuram, seeking for consolidation and joint trial of all the proceedings between them. The Registry shall forward a copy of this order to the Family Court, Kozhikode, with instructions to forthwith transmit the records in O.P. 46/2021 to the Family Court, Thiruvananthapuram. The Family Court, Thiruvananthapuram, shall immediately on receipt of the records in O.P 46/2021, call the case along with Annexure-A1. ## **Sd/-** ma/09.06.2022 **C.S.DIAS, JUDGE** **TR.P(C) NO. 546 OF 2021** **8** ## **APPENDIX OF TR.P(C) 546/2021** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE OP (HMA) NO 828/2021 DATED 31.3.2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT THIRUVANANTHAPURAM Annexure A2 TRUE COPY OF BIRTH CERTIFICATE DATED 14.5.21 ISSUED BY THE GOVT OF KERALA Annexure A3 TRUE COPY OF THE OP(HMA) NO 46/2021 DATED 11.1.21 BEFORE THE HON'BLE FAMILY COURT , KOZHIKODE FOR THE DISSOLUTION OF MARRIAGE BETWEEN PETITIONER AND RESPONDENT 15