Indu S. v. Suneesh C.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944 ``` ## `TR.P(C) NO. 227 OF 2022` ``` IN OP 1019/2020 OF FAMILY COURT, PATHANAMTHITTA ``` ``` PETITIONER: ``` ``` INDU.S, AGED 29 YEARS, W/O SUNEESH, RESIDING AT KUZHIMANNIL PUTHENVEEDU, MALLASSERRY MURI P.O., PRAMADOM, KONNI, PATHANAMTHITTA DISTRICT, PRESENTLY RESIDING AT PALAKKATU HOUSE, KULAYITTIKARA P.O., VIA KANJIRAMATTOM, AMBALOOR VILLAGE, KANAYANOOR TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADV P.A.AJITH KUMAR ``` ## `RESPONDENTS:` ``` 1SUNEESH.C., AGED 39 YEARS, S/O.CHELLAPPAN NAIR, RESIDING AT ELAVUNIKUNNATHIL HOUSE, VETTOOR MURI, MALLASSERY P.O., PRAMADOM VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT. 2LAKSHMIKUTTY AMMA, W/O.CHELLAPPAN NAIR, RESIDING AT ELAVUNIKUNNATHIL HOUSE, VETTOOR MURI, MALLASSERY P.O., PRAMADOM VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT. 3SUNILKUMAR.M.C, S/O.CHELLAPPAN NAIR, RESIDING AT ELAVUNIKUNNATHIL HOUSE, VETTOOR MURI, MALLASSERY P.O., PRAMADOM VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT. ``` ``` BY ADV V.SETHUNATH ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2022, ALONG WITH Tr.P(C).466/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:2:- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944 ``` ## `TR.P(C) NO. 466 OF 2022` ``` IN OPHMA 766/2022 OF FAMILY COURT,ERNAKULAM ``` ## `PETITIONER:` ``` SUNEESH C., AGED 39 YEARS, S/O.CHELLAPPAN NAIR, RESIDING AT ELAVUNIKUNNATHIL HOUSE, VETTOOR MURI, MALLASSERY P.O., PRAMADOM VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT. PIN : 689646 ``` ``` BY ADVS. V.SETHUNATH V.R.MANORANJAN (MUVATTUPUZHA) ``` ## `RESPONDENT:` ``` INDU S. AGED 29 YEARS W/O SUNEESH, RESIDING AT KUZHIMANNIL PUTHENVEEDU, MALLASSERRY MURI P.O., PRAMADOM, KONNI, PATHANAMTHITTA DISTRICT.PIN: 689646 ``` ``` BY ADV P.A.AJITH KUMAR ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2022, ALONG WITH Tr.P(C).227/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:3:- ``` Dated this the 24[th] day of November, 2022 ## **C O M M O N O R D E R** As the transfer petitions pertain to the disputes that have arisen out of the marriage between Indu S. (wife) and Suneesh.C (husband), they are being disposed of by this common order. 2. Tr.P.(C)No.227/2022 is filed by the wife against her husband, his mother and brother to transfer O.P.No.1019/2020 from the Family Court, Pathanamthitta, to the Family Court, Ernakulam and Tr.P.(C)No.466/2020 is filed by the husband against the wife to transfer O.P.(HMA)No.766/2022 from the Family Court, Ernakulam to the Family Court, Pathanamthitta. The parties are, for the sake of convenience, referred to as per the status in Tr.P. (C)No.227/2022, which is treated as the leading case. 3. The common case of the petitioner/wife in ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:4:- ``` the Tr.P.(C)No.227/2022 is that she is the wife of the first respondent. Their marriage was solemnized on 28.06.2012. A son was born in the wedlock on 07.04.2014. The marital relationship ran into troubled waters. They agreed to part ways by filing a joint petition. In the meantime, the petitioner preferred O.P.No.1019/2020 before the Family Court, Pathanamthitta, against her husband, his mother and brother, for a decree for return of gold ornaments and other belongings. She also filed M.C.No.10/2021 before the jurisdictional Magistrate at Pathanamthitta, invoking the provisions of the Protection of Women from Domestic Violence Act, 2005(in short, ‘Act’). The first respondent is taking hasty steps to leave India. The petitioner has acquired a job in Ernakulam. The matters before the courts at Pathanamthitta are being dragged and ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:5:- ``` prolonged. As the petition for divorce on mutual consent was not filed, the petitioner has now filed O.P. (HMA)No.766/2022 before the Family Court, Ernakulam. It is difficult for the petitioner to travel from Ernakulam to Pathanamthitta, to prosecute O.P.No.1019/2020 before the Family Court, Pathanamthitta. Hence, the transfer petition. 4. The respondents have filed a counter affidavit through the first respondent, denying the allegations in the transfer petition. They have contended that the petitioner continues to reside in Pathanamthitta. The address in Ernakulam is that of a friend of the petitioner. The child of the couple is studying in the Mount Bethany School, Kumbazha, Pathanamthitta and is residing in the parental home of the petitioner. The petitioner has sought for the transfer of the proceeding anticipating that the ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:6:- ``` respondents may not contest the proceedings before the Family Court, Ernakulam. The temporary address shown by the petitioner in the transfer petition is misleading. The petitioner has already filed M.C.No.10/2021 before the jurisdictional Magistrate at Pathanamthitta and is pursuing the case before the said court. The contention that the petitioner is employed in a company in Ernakulam is false. The company is no longer in existence. There is no bona fides in the transfer petition which may be dismissed. 5. The first respondent has filed Tr.P. (C)No.466/2022, raising the very same contentions as averred in the counter affidavit filed to Tr.P. (C)No.227/2022. He has further contended that no inconvenience would be cause to the petitioner, if the case is transferred. The petitioner has suppressed the mediation report in M.C.No.10/2021 before ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:7:- ``` the jurisdictional Magistrate. Hence, Tr.P. (C)No.466/2022 may be allowed. 6. The petitioner has filed a counter affidavit to Tr.P.(C)No.466/2022 denying the allegations in the transfer petition. She has contended that first respondent has filed transfer petition only to harass her. Hence, Tr.P.(C)No.466/2022 may be dismissed. 7. Heard; Sri.P.A. Ajithkumar, the learned counsel appearing for the petitioner – wife and Sri.V. Sethunath, the learned counsel appearing for the respondents in Tr.P.(C)No.227/2022 – the petitioner in Tr.P.(C)No.466/2022. 8. The question is which transfer petition is to be allowed?. 9. On an analysis of the pleadings and materials on record, it is evident that the petitioner has herself filed O.P.No.1019/2020 before the Family ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:8:- ``` Court, Pathanamthitta, against the husband, his mother and his brother, for a decree for return of money and gold ornaments. She also has filed M.C.No.10/2021 before the jurisdictional Magistrate at Pathanamthitta, invoking the provisions of the Act. 10. The reasons for transfer of O.P.No.1019/2020 are that the petitioner has secured a job at Ernakulam, the case before the Family Court, Pathanamthitta, is getting prolonged and the petitioner has now filed O.P.(HMA)No.766/2022 before the Family Court, Ernakulam, against her husband for a decree of divorce. 11. Even though the petitioner has alleged that she is residing at Ernakulam, no scrap of paper has been produced to prove her residence at Ernakulam. 12. It is also pertinent to note that, in Tr.P. (C)No.466/2022, this Court had issued process to the ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:9:- ``` petitioner in her permanent address at Pathanamthitta. Admittedly, she has received the notice in the said address, which substantiates that the said address is her permanent abode. Furthermore, the child is residing in the parental home of the petitioner in Pathanamthitta and pursing the studies in a school at Pathanamthitta. 13. This Court in **Silpa Shaji v. Satheesh K.S & Ors.** [2022 (1) KHC 691] has held that a mere temporary residence is not a ground for transfer. 14. A Division Bench of this Court in **Vidya Mundekkat v. Akhilesh Jayaram** [2021(6) KHC 506] has categorically held that there is no invariable rule that, whenever a wife makes a request for transfer, pointing out an inconvenience, this Court is obliged to exercise its discretionary power under Section 24 of the CPC. ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:10:- ``` 15. In the case at hand, it is the petitioner who herself filed O.P.No.1019/2020 before the Family Court, Pathanamthitta. Her permanent residence is within the jurisdiction of the said court. M.C.No.10/2021 is also pending before the jurisdictional Magistrate at Pathanamthitta. Undisputedly, the child is also residing in Pathanamthitta. Thereafter, on the pretext that the petitioner has secured a job in Ernakulam, she filed O.P.(HMA)No.766/2022 before the Family Court, Ernakulam. Moreover, the respondents who are three in number, which includes the mother of the first respondent/husband is also residing in Pathanamthitta. 16. On an overall consideration of the facts and circumstances of the case, I am of the definite view that the petitioner’s request for transfer of ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:11:- ``` O.P.No.1019/2020 from the Family Court, Pathanamthitta to the Family Court, Ernakulam, is only to be dismissed and the husband’s request is to be allowed. Hence, I am inclined to allow Tr.P. (C)No.466/2022 by ordering the transfer of O.P. (HMA)No.766/2022. In the result, I dispose of the transfer petitions as follows: - (i) Tr.P(C) No.227/2022 is dismissed. - (ii) Tr.P(C)No.466/2022 is allowed, by ordering the transfer of O.P.(HMA)No.766/2022 from the Family Court, Ernakulam to the Family Court, Pathanamthitta - (iii) The parties would be at liberty to move the Family Court, Pathanamthitta and seek for consolidation and joint trial of all the cases between them. - (iv) The Registry shall forward a copy of the common order to the Family Court, ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:12:- ``` Ernakulam, with instructions to forthwith transmit the records in O.P. (HMA)No.766/2022 to the Family Court, Pathanamthitta - (v) The Family Court, Pathanamthitta shall, immediately on receipt of the records in O.P. (HMA)No.766/2022 post the case along with O.P.No.1019/2020 Sd/- ## **C.S.DIAS,JUDGE** DST/24.11.22 //True copy/ P.A.To Judge ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:13:- ``` ## `APPENDIX OF TR.P(C) 227/2022` ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF THE OP 1019/2020 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA. ``` ``` RESPONDENTS EXHIBITS ANNEXURE-R1(A)THE TRUE COPY OF THE M.C NO. 10/ 2021 ON THE FILE OF THE J.F.M.C NO-II, PATHANAMTHITTA ``` ``` ANNEXURE-R1(BTHE TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN M.C NO. 10 / 2021 ON THE FILE OF THE J.F.M.C NO-II, PATHANAMTHITTA ``` ``` ANNEXURE-R1(C)THE TRUE COPY OF THE PROCEEDINGS IN M.C NO. 10 / 2021 ON THE FILE OF THE J.F.M.C NO-II, PATHANAMTHITTA ANNEXURE-R1(D)TRUE COPY OF HTE PRINT FROM THE WEBSITE OF ZAPIO TECHONLOGY ANNEXURE-R1(E)TRUE COPY OF THE PRINT OUT TAKEN FROM THE WEBSITE OF THE INFOPARK TBC, KALOOR, KOCHI ``` ``` Tr.P.(C)Nos.227 & 466/2022 ``` ``` -:14:- ``` ## `APPENDIX OF TR.P(C) 466/2022` |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`ANNEXURE 1`|`THE TRUE COPY OF THE PETITION SUBMITTED BY`| ||`THE 1ST RESPONDENT IN O. P (HMA) NO.766/ 2022`| ||`ON THE FILE OF THE FAMILY COURT, ERNAKULAM`| |`ANNEXURE 2 A`|`TRUE COPY OF THE INTERIM ORDER DATED 8-7-2022`| ||`IN R.P.NO. 568/2022`| |`ANNEXURE 2 B`|`TRUE COPY OF THE INTERIM ORDER DATED 12-7-`| ||`2022 IN R.P.NO. 568 /2022`| |`ANNEXURE 3`|`TRUE COPY OF THE PROCEEDINGS TAKEN FROM THE`| ||`WEBSITE OF FAMILY COURT, PATHANAMTHITTA IN`| ||`O.P.NO. 1019/ 2020`| |`ANNEXURE A`|`THE TRUE COPY OF THE PROCEEDINGS IN M.C.NO.`| ||`10/ 2021 ON THE FILE OF THE J.F.M.C NO.II,`| ||`PATHANAMTHITTA`| |`ANNEXURE 5`|`TRUE COPY OF THE PETITION IN M.C.NO. 10/ 2021`| ||`ON THE FILE OF THE J.F.M.C NO.II,`| ||`PATHANAMTHITTA`| |`ANNEXURE 6`|`THE TRUE COPY OF THE PROCEEDING IN O.P`| ||`NO.766/2022 ON THE FILE OF THE FAMILY COURT,`| ||`ERNAKULAM`| |`ANNEXURE 7`|`THE TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`FAMILY COURT ERNAKULAM PROCEEDING IN O.P`| ||`NO.766/2022`| |`ANNEXURE 8`|`THE TRUE COPY OF THE CASE STATUS OF THE`| ||`WEBSITE FROM THIS COURT IN TR.P.(C) NO.`| ||`227/2022 12 AFFIDAVIT AND STAY PETITION.`|