Dr. Shehnaz and others v. Dr. Sabir Irfan C.P. and others

Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942** **Tr.P(C).No.225 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OP 1335/2019 OF FAMILY COURT,KOZHIKODE** ## **PETITIONER/S:** **1 DR. SHEHNAZ, AGED 28 YEARS D/O.JAHANGIR, SHALIMAR, KULAMUTTAM P.O., MOONGODE, VARKALA, THIRUVANANTHAPURAM. 2 JAHANGIR, AGED 60 YEARS S/O.ABDUL SALAM, SHALIMAR, KULAMUTTAM P.O., MOONGODE, VARKALA, THIRUVANANTHAPURAM.** **3 NISHA, AGED 55 YEARS W/O.JAHANGIR, SHALIMAR, KULAMUTTAM P.O., MOONGODE, VARKALA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.A.L.NAVANEETH KRISHNAN SMT.ASWATHY KRISHNAN** ## **RESPONDENT/S:** **DR. SABIR IRFAN C.P., AGED 32 YEARS S/O.P.P.KOYA, DARUL HAMAD HOUSE, THAMPURAN ROAD, NADUVATTOM, NORTH BEYPORE, KOZHIKODE-673 015.** **R1 BY ADV. SRI.M.MUHAMMED SHAFI** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.07.2020, ALONG WITH Tr.P(Crl.).30/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942** **Tr.P(Crl.).No.30 OF 2020** **AGAINST THE ORDER/JUDGMENT IN MC 57/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA** ## **PETITIONER/S:** - **1 DR.SABIN IRFAN C.P., AGED 36 YEARS S/O.P.P. KOYA, DHARUTHAMD HOUSE, THAMPURAN ROAD, NADUVATTOM, NORTH BEPUR, KOZHIKODE DIST. NOW RESIDING AT CHERIYA PURAKKAD, KALPENI, UNION TERRITORY OF LAKSHADWEEP, 682 557.** - **2 P.P. KOYA, AGED 67 YEARS S/O. SYED MUHAMMED KOYA, DHARUTHAMD HOUSE, THAMPURAN ROAD, NADUVATTOM, NORTH BEPUR, KOZHIKODE DIST. NOW RESIDING AT PAKKARAPADA,KALPENI, UNION TERRITORY OF LAKSHADWEEP, 682 557.** - **3 HAFSABI, AGED 65 YEARS W/O.P.P. KOYA, 'DHARUTHAMD HOUSE, THAMPURAN ROAD, NADUVATTOM, NORTH BEPUR, KOZHIKODE DIST. NOW RESIDING AT CHERIYA PURAKKAD, KALPENI, UNION TERRITORY OF LAKSHADWEEP, 682 557.** - **4 DR. SHABNAN.C.P., AGED 33 YEARS W/O. DR. ANOOB AYYANIL ABOOBACKER, DHARUTHAMD HOUSE, THAMPURAN ROAD, NADUVATTOM, NORTH BEPUR, KOZHIKODE DIST673 015.** ## **BY ADV. SRI.M.MUHAMMED SHAFI** ## **RESPONDENT/S:** **DR.SHEHNAZ, AGED 28 YEARS D/O. JAHANGIR, SHALIMAR, KULAMUTTAM P.O. MOONGODE, VARKALA, THIRUVANANTHAPURAM DISTRICT 673 015.** Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 3 **R1 BY ADV. SRI.A.L.NAVANEETH KRISHNAN** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 23.07.2020, ALONG WITH Tr.P(C).225/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 4 ## **JUDGMENT** ## **[ Tr.P(C).225/2020, Tr.P(Crl.).30/2020 ]** ## **Dated this the 23rd day of July 2020** The petitioners in Tr.P.(C) No. 225 of 2020 are the respondents in O.P. No. 1335 of 2019 pending before the Family Court, Kozhikode. 2. Tr.P.(Crl.) No. 30 of 2020 is filed by the respondents in M.C. No. 57 of 2019 pending before the Judicial First Class Magistrate Court -I, Varkala. 3. The 1[st] petitioner in Tr.P.(C) No.225 of 2020, is the wife of the respondent and petitioners 2 and 3 are the parents of the 1[st] petitioner. The marriage of the 1[st] petitioner with the respondent was solemnized on 15.8.2018, but subsequently the marital relationship has strained. Now, she is pursuing her Post-Graduation in medicine at Thiruvananthapuram. Due to the ill-treatment of the respondent towards her, she was constrained to live separately and ultimately she had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 5 against the respondents. Now the case is pending as M.C. No.57 of 2019. Meanwhile, the respondent herein filed a petition for declaration of his marriage with the 1[st] petitioner as null and void and the case is pending before Family Court, Kozhikode as O.P. No. 1335 of 2019. Since it is most inconvenient for her to travel upto Kozhikode to contest the case filed against her, she has filed this petition to get transfer of the case to the Family Court, Varkala. 4. Tr.P.(Crl.) No. 30 of 2020 is filed by the respondent in Tr.P.(C) No. 225 of 2020 along with the other petitioners who are the respondents in M.C. No.57 of 2019 to get the case transferred from the Judicial First Class Magistrate Court-I, Varkala to Judicial First Class Magistrate Court-V, Kozhikode. The case of the petitioners in this petition is that they are natives of Kalpeni Island in Lakshadweep. Occasionally, they used to reside at their residence at Kozhikode as part of the higher studies of petitioners 1 and 4 who are pursing medical course. Their case is that transfer of M.C. No. 57 of 2019 from Varkala to Kozhikode will be convenient for them as it is very Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 6 difficult for them to participate in the proceedings by travelling from Lakshadweep to Varkala. 5. It is pertinent to note that in Tr.P.(C) No. 225 of 2020, the 1[st] petitioner is the wife of the respondent and petitioners 2 and 3 are her parents. In O.P. No. 1335 of 2019, all these petitioners are made as respondents. The 1[st] petitioner in Tr.P.(C) No. 225 of 2020 is a doctor pursuing her Post-Graduation at Thiruvananthapuram. Her definite case is that since she is pursuing her Post-Graduation course as Junior Resident, it is quite inconvenient and difficult for her to travel upto Kozhikode to attend the court in the O.P. filed by her husband for declaration of her marriage with him as null and void. She has specifically stated that to pursue her studies, she is temporarily residing at Thiruvananthapuram and occasionally visits her parents at Varkala and hence, she is compelled to file this petition to transfer O.P. No. 1335 of 2019 from Family Court, Kozhikode to Family Court, Varkala. 6. On the other hand, the 1[st] respondent along with the other respondents in M.C. No. 57 of 2019 filed Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 7 the petition stating that as they are residents of Lakshadweep, they find it difficult to attend the court proceedings at Varkala and therefore their request is to transfer M.C. No. 57 of 2019 from JFCMI, Varkala to JFCM-V, Kozhikode. It is further stated that the 1[st] respondent is also a doctor by profession. His parents are in Lakshadweep and his sister, the 4[th] respondent in the M.C, is pursuing her Post-Graduation course at Kozhikode. 7. It is well settled that in matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband. (See **Sumita Singh v. Kumar Sanjay** (2002 KHC 1889), **Sailaja V v. V. Koteswara Rao** (2003 KHC 3105) and **Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi** ((2005) 12 SCC 237). 8. So, the principle applied in the above decisions would show that the convenience of the wife has to be given preference over the convenience of the husband. In Tr.P.(C) 225 of 2020, the 1[st] petitioner is a doctor who is pursuing her Post graduation course at Thiruvananthapuram. So, definitely it will be Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 8 inconvenient for her to attend the court proceedings in the case pending before the Family Court, Kozhikode. Though an argument was advanced by the learned counsel for the husband, who is the 1[st] petitioner in Tr.P.(Crl.) No. 30 of 2020, that the age shown in the transfer petition with respect to the parents of the 1[st] petitioner is absolutely incorrect, in the absence of supporting materials it is unable to uphold the said contention and that has no relevancy at all for consideration of these petitions. But the facts and circumstances indicate that it will be inconvenient for the 1[st] petitioner in Tr.P.(C) No. 225 of 2020 to travel to Kozhikode to attend the case filed by her husband i.e., O.P. No. 1335 of 2019. Therefore, I think that it is only appropriate to transfer the said case to Family Court, Varkala. Tr.P.(Crl.) No. 30 of 2020 is only to be dismissed though the 4[th] petitioner is also a student. No doubt her presence in the court is not always required to proceed with the matter. Hence, Tr.P(C) No. 225 of 2020 is allowed and O.P. No. 1335 of 2019 pending before the Family Court, Kozhikode is transferred to Family Court, Varkala. Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 9 Learned Judge Family Court, Kozhikode shall transmit the records to the Family Court, Varkala after fixing a date for appearance of the parties before the transferee court. Tr.P.(Crl.) No. 30 of 2020 stands dismissed. ## **Sd/-** ## **SHIRCY V.** ## **JUDGE** ## **Sb** The words ' **Family Court, Varkala** ' occurring in the Judgment dated 23.07.2020 in Tr.P.(C) No. 225/2020 stands corrected as ' **Family Court, Thiruvananthapuram** ' as per order dated 12.01.2021 in I.A. No.6/2020 in Tr.P.(C) No. 225/2020. Sd/- **DEPUTY REGISTRAR** Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 10 ## **APPENDIX OF Tr.P(C) 225/2020** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF THE PETITION FILED BY THE 1ST PETITIONER BEFORE THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT AT VARKALA AS MC NO.57/2019 DATED 25.04.2019.** ## **ANNEXURE A2** **THE TRUE COPY OF THE PETITION FILED BY THE RESPONDENT BEFORE THE HONOURABLE FAMILY COURT AT KOZHIKODE AS OP NO.1335/2019 DATED 02.11.2019.** Tr.P.(C) 225/2020 & Tr.P.(Crl.)30/2020 11 ## **APPENDIX OF Tr.P(Crl.) 30/2020** **PETITIONER'S/S EXHIBITS: ANNEXURE A1 TRUE COPY OF THE APPLICATION IN MC. NO. 57/2019. ANNEXURE A2 TRUE COPY OF THE AADHAR CARD OF PETITIONER NO. 2. ANNEXURE A3 TRUE COPY OF THE AADHAR CARD OF PETITIONER NO. 3.**