GIREESHMA v. RANESH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938** ## **Tr.P(C).No. 298 of 2016 ()** ## **--------------------------TO TRANSFER OP(HMA).499/2016 OF FAMILY COURT, ATTINGAL TO FAMILY COURT, KOTTARAKKARA.** **.......** **PETITIONER(S): -----------------------** **GIREESHMA, D/O. BINDHU, BINDHU BHAVAN, GOVINDA MANGALAM, KADAKKAL, KOLLAM.** **BY ADV. SRI.B.MOHANLAL.** **RESPONDENT(S): --------------------------** **RANESH, S/O. BABU, V.B. NIVAS, KOVOOR, CHEMMARUTHY VILLAGE, PALAYAMKUNNU. P.O., VARKALA VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 012.** **BY SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE. ADV. SRI.GEORGE MATHEWS.** **THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2016, ALONG WITH TRP(C). NO. 334 OF 2016 AND TRP(CR). NO. 55 OF 2016, THE COURT ON 20/10/2016 PASSED THE THE FOLLOWING:** rs. ## **Tr.P(C).No. 298 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** |**ANNEXURE A1**|**COPY OF THE PLAINT IN O.P. NO.1102/2014 FILED BY THE**| |---|---| ||**PETITIONER ALONG WITH THE MINOR CHILD BEFORE THE**| ||**FAMILY COURT, KOTTARAKKARA.**| |**ANNEXURE A2**|**COPY OF THE M.C. NO.5/2016 FILED BY THE RESPONDENT**| ||**FILED BY THE PETITIONER ALONG WITH THE MINOR CHILD**| ||**BEFORE THE FAMILY COURT, KOTTARAKKARA.**| |**ANNEXURE A3**|**COPY OF THE NOTICE ISSUED FROM FAMILY COURT,**| ||**ATTINGAL IN OP(HMA) NO.499/2016 TO THE PETITIONER.**| **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **K. RAMAKRISHNAN, J.** .................................................. Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 ....................................................... Dated this the 20[th] day of October, 2016. ## **O R D E R** Tr.P.(C).No.298 of 2016 was filed by the petitioner/wife for transfer of OP(HMA).No.499/2016 pending before the Family Court, Attingal, while Tr.P.(C).No.334 of 2016 and Tr.P.(Crl)No.55 of 2016 were filed by the husband for transfer of OP.No.1102/2014 and MC.No.5/2016 both pending before the Family Court, Kottarakkara to the Family Court, Attingal under section 24 of the Code of Civil Procedure and section 407 of the Code of Criminal Procedure respectively. The petitioner in Tr.P.(C).No.298 of 2016 and also the first respondent in Tr.P.(C).No.334 of 2016 and Tr.P.(Crl)No.55 of 2016 is the wife of the respondent in that case and other respondent in those cases are the child born to them in the wedlock. 2. The common case of the parties in these cases was that in the marital relationship between the petitioner and the respondent in Tr.P.(C).No.298 of 2016 and the petitioner and the first respondent in Tr.P.(C).No.334 of 2016 and Tr.P.(C).No.55 of 2016, the second respondent in Tr.P.(C).No.334 of 2016 and Tr.P. (Crl).No.55 of 2016 was born and they were living together for sometime and thereafter their relationship strained and the wife and the child were residing separately at Kadakkal within the Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 2 jurisdiction of the Family Court, Kottarakkara. The marriage between them was solemnized at Kadakkal and the wife is now residing with the child at Kadakkal. Since the respondent did not pay any maintenance, the wife along with the child filed OP.No.1102/2014 before the Family Court, Kottarakkara for return of gold ornaments and past maintenance and other monetary reliefs. The wife also filed MC.No.5/2016 before the Family Court, Kottarakkara for maintenance of herself and the child under section 125 of the Code of Criminal Procedure. The respondent entered appearance in that case. Thereafter the husband filed OP(HMA).No.499/2016 before the Family Court, Attingal for dissolution of marriage. The wife filed Tr.P.(C).No.298 of 2016 to transfer that case to the Family Court, Kottarakkara where two other cases filed by her were pending. It is also mentioned in the petition that it will be difficult for her to go to Attingal to conduct the case as she will have to board three buses to reach Attingal, whereas she is having direct convenient bus to go to Kottarakkara from Kadakkal. The husband filed Tr.P.(C).No.334 of 2016 to transfer OP.No.1102/2014 and Tr.P.(Crl).No.55 of 2016 to transfer MC.No.5/2016 both pending before the Family Court, Kottarakkara to the Family Court, Attingal as according to him Attingal will be nearer to both the husband and wife and so that Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 3 both can conveniently go to that court and conduct the cases. With these allegations, the respective parties have filed these petitions for transfer of the cases to the place of their choice as mentioned in these petitions. 3. Since Tr.P.(Crl).No.55 of 2016 was pending before the Bench dealing with subordinate criminal court matters and since this court felt that all these cases will have to be heard together by the same Bench, requested the Hon'ble Chief Justice to pass appropriate orders regarding the same. Accordingly, the same was also directed to be heard by this Bench as per orders of the Hon'ble Chief Justice. 4. Heard Sri.Mohan Lal, learned counsel appearing for the wife and the child and Sri.Gracious Kuriakose, learned senior counsel appearing for the husband in all these cases. Since the point to be considered in all these cases is the same, all these cases are disposed of by a common order. The status of the parties is referred to in tune with the relationship instead as the petitioner and the respondent for convenience sake. 5. Learned counsel for the wife submitted that it is difficult for her to go to Attingal to conduct the case as she will have to board three buses to go there and there is a convenient bus available for her to go to Kottarakkara and she is without any Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 4 employment and she is finding it difficult to live and she is now living with her parents and they are looking after her and the child. 6. Learned counsel for the petitioner also submitted that the marriage between the parties and the paternity of the child born etc are not in dispute. It is also not in dispute that the marriage between the parties was solemnized at Kadakkal which is within the jurisdiction of Kottarakkara Family Court and the petitioner is now residing at Kadakkal with the child. So, according to the petitioner, it is difficult for her to go to Attingal to conduct the case. 7. On the other hand, learned senior counsel appearing for the respondent submitted that Attingal court is nearer to both the wife and the husband and there are number of buses plying from Kadakkal to Attingal and no hardship will be caused to the wife if the cases are transferred to Attingal court, whereas the husband will have to travel more distance than the wife to reach Kottarakkara and that will cause more hardship to him. The court can take into consideration the convenience of both the parties while considering the question of transfer of cases. 8. The fact that there is marriage between the parties and a child was born to them in the wedlock is not in dispute. It is also Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 5 not in dispute that after sometime, their relationship strained and the wife is now residing with the child at her parental house at Kadakkal. It is also not in dispute that the marriage between the parties was solemnized at Kadakkal which is within the jurisdiction of Kottarakkara family court. In fact, the wife has filed earlier OP.No.1102/2014 for return of gold ornaments and maintenance against the husband before the Family Court, Kottarakkara and the respondent had entered appearance, but not filed objections so far in that case, which is seen from the report submitted by the Family Court, Kottarakkara. It is seen from the report that the wife has filed MC.No.5/2016 before the Family Court, Kottarakkara seeking maintenance at the rate of Rs.5,000/- for herself and the child against the husband and the family court had passed an order of interim maintenance at the rate of Rs.2,000/- each to the wife and the child against the respondent. It is after the filing of the petition filed by the wife for return of gold ornaments and maintenance in the year 2014, after nearly 1 ½ years, in the year 2016, the husband filed OP(HMA).No.499/2016 before the Family Court, Attingal for divorce. It is in a way admitted that the wife is without any employment and she is living with her parents in her parental house with the child. 9. It is true by distance wise Attingal is nearer to both the Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 6 husband and the wife and bus service is also available. But it may be mentioned here that earlier petition for return of gold ornaments and maintenance was filed by the wife before the Family Court, Kottarakkara within whose jurisdiction Kadakkal where the wife is now residing is situate and the respondent was conducting the case for more than 1 ½ years there. It is thereafter that the husband filed OP(HMA).No.499/2016 before the Family Court, Attingal which court is also having jurisdiction to entertain that application as the spouses have last resided together within the jurisdiction of that court. But it may be mentioned here that the respondent is working abroad and he is not in his native place. The petitioner had accustomed to go to Kottarakkara to conduct the case from 2014 onwards. She may be finding it convenient, though distance wise Attingal is nearer, to her to go to Kottarakkara to conduct the case without the hep of anyone. Further, according to the counsel, there is a direct bus available at a particular time, so that she can reach Kottarakkara in time and attend the case whereas though several buses are available, there is no straight bus available at convenient time for the wife to go with the child to Attingal court and she will have to go early morning so as to reach Attingal within time to attend the case, otherwise she will have to board three buses to reach Attingal which will cause Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 7 unnecessary hardship to her. 10. Further, the first case was filed in the year 2014 by the wife against the husband and he had not made any attempt to get that case transferred to Attingal on the ground of convenience of both the parties but he had waited for filing the petition for divorce before the Attingal court and thereafter moved the applications for transfer of cases pending before the Family Court, Kottarakkara to the Family Court, Attingal. So under such circumstances, disturbing the convenience enjoyed by the wife and accustomed the mode of travel which she was enjoying from 2014 onwards to go to Kottarakkara to conduct the case by herself with the child and asking her to go to Attingal to conduct the case which was filed by the husband later will cause unnecessary hardship to her. Further, the maintenance awarded also was not paid, according to the learned counsel for the wife. So under such circumstances, this court feels that the over all circumstances will go to show that it will cause more inconvenience to the wife, if the cases filed by her at the Family Court, Kottarakkara are transferred to the Family Court, Attingal than the hardships that may be caused to the husband. 11. Further in the decision reported in _**Raichal John v. Francis Ninan**_ (1995 (1) KLT 687) this court held that Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 8 machinery is provided by Family Courts to solve and reconcile dispute and the cases have been filed before the court having jurisdiction taking into consideration of the convenience of one of the parties alone is not a ground to deprive that benefit. So considering the balance of convenience between the parties as discussed above, this court feels that there is no necessity to transfer the cases pending before the Family Court, Kottarakkara to the Family Court, Attingal, but at the same time taking into consideration the hardships caused to the wife, the case pending before Attingal court has to be transferred to the Family Court, Kottarakkara for disposal along with the cases pending before the Family Court, Kottarakkara between the same parties. So Tr.P.(C). No.334 of 2016 and Tr.P.(Crl.)No.55 of 2016 are liable to be dismissed, while Tr.P.(C).No.298 of 2016 has to be allowed and OP(HMA).No.499/2016 pending before the Family Court, Attingal has to be transferred to the Family Court, Kottarakkara. So, Tr.P.(C).No.334 of 2016 and Tr.P.(Crl.)No.55 of 2016 are dismissed. Tr.P.(C).No.298 of 2016 is allowed and OP(HMA). No.499/2016 pending before the Family Court, Attingal is withdrawn and transferred to the Family Court, Kottarakkara to be tried along with OP.No.1102/2014 and MC.No.5/2016 pending before the Family Court, Kottarakkara. The Family Court, Attingal Tr.P.(C).No.298 of 2016, Tr.P.(C).No.334 of 2016 & Tr.P.(Crl)No.55 of 2016 9 is directed to transmit the records to the Family Court, Kottarakara immediately. On getting the records from the Family Court, Attingal, the Family Court, Kottarakkara is directed to expedite the disposal of all the cases at the earliest. Registry is directed to communicate a copy of this order to both the courts immediately. **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl