Jeena Mary Thomas v Joji C George and Mariamma George

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ## **`TR.P(C) NO. 572 OF 2022`** ``` IN OP(DIV) NO.636/2020, OP NO. 637/2020 AND OP NO.1118/202 OF FAMILY COURT, ETTUMANOOR, KOTTAYAM ``` ## **`PETITIONERS/RESPONDENTS:`** ``` 1JOJI C GEORGE AGED 43 YEARS JOJI C GEORGE S/O LATE C M GEORGE, CHARIVUKALAYIL (H) MATHOOR P.O., MANJANIKKARA, MURI, KOZHENCHERRY, PATHANAMTHITTA, PIN - 688647 2MARIAMMA GEORGE AGED 75 YEARS MARIAMMA GEORGE W/O LATE C M GEORGE, CHARIVUKALAYIL HOUSE, MATHOOR P.O., MANJANIKKARA MURI, KOZHENCHERRY TALUK, PATHANAMTHITTA., PIN - 688647 BY ADVS. ABRAHAM P.MEACHINKARA MARGARET MAUREEN DROSE JAYAKRISHNAN P.R. THOMAS GEORGE KURIAKOSE MATHEW ALEXANDER K.C. ``` ## **`RESPONDENT/PETITIONER:`** ``` JEENA MARY THOMAS AGED 37 YEARS JEENA MARY THOMAS D/O GEORGE THOMAS, KODUVATHU HOUSE, KOLLAD P.O. KOTTAYAM., PIN - 686004 ``` ``` BY ADVS. ABRAHAM C I BINDU ABRAHAM(K/312/1997) ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`TR.P(C) NO. 572 OF 2022 2`** ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, seeking to transfer O.P. No.636/2020 (Annexure 1), O.P No.637/2020 (Annexure 2) and O.P.No.1118/2020 (Annexure 3) from the Family Court, Ettumanoor to the Family Court, Pathanamthitta. 2. The petitioners’ case, in brief, in the memorandum of transfer petition is that, first petitioner is the husband of the respondent. The second petitioner is the mother and power attorney holder of the first petitioner. The marital relationship between the first petitioner and the respondent is strained. They have a daughter children born in their wedlock. The first petitioner is now bedridden due to acute Ischemic stroke right Hemi Pontine infract with left sided Hemiplegia. The respondent is a nurse by profession and she has worked at ``` TR.P(C) NO. 572 OF 2022 3 ``` different places. The respondent has filed Annexures 1 and 2 before the Family Court, Ettumanoor, against the petitioners. The first petitioner has filed Annexure 3 before the same court against the respondent, seeking an order for the custody of the child. Due to the present medical condition of the first petitioner, he is unable to travel from Pathanamthitta to Ettumanoor to contest Annexures 1 to 3. Moreover, his mother and power of attorney holder is old and sick. Therefore, Annexures 1 to 3 may be transferred. 3. The respondent has filed a counter affidavit refuting the allegations in the transfer petition. It is her case that, she has filed M.C. No.129/2020 before the Family Court, Ettumanoor, against the first petitioner, for an order of maintenance. It is after that, she has filed Annexures 1 and 2. The respondent and daughter are permanently residing in Kottayam District. It would be difficult and inconvenient for them to travel from Kottayam ## **`TR.P(C) NO. 572 OF 2022 4`** to Pathanamthitta, if the cases are transferred. Moreover, for the last two years the petitioners are contesting all the proceedings before the Family Court, Ettumanoor. The sole intention of the petitioners in filing the transfer petition is to exert pressure on the respondent to withdraw the cases. Hence, the transfer petitioner may be dismissed. 4. Heard; Sri. Abrahm P. Meachinkara, the learned counsel appearing for the petitioners and Sri. C.I. Abraham, the learned counsel appearing for the respondent. 5. Undisputedly, the respondent has filed Annexures 1 and 2 and the first petitioner has filed Annexure 3, before the Family Court, Ettumanoor. It is on record that, it was the respondent who first filed M.C. No.129/2020 before the same court, against the first petitioner. 6. The sole ground to transfer all the proceedings is that the first petitioner has suffered a stroke and is paralyzed, and is therefore not in a position to appear ## **`TR.P(C) NO. 572 OF 2022 5`** before the Family Court, Ettumanoor. 7. On an evaluation of the pleadings and materials on record, it is revealed that the first petitioner is represented by his power of attorney holder – his mother – the second petitioner. As the first petitioner is said to be paralyzed, the transfer of all the proceedings is not going to help him in any manner because it would be equally difficult for him to appear before the Family Court, Pathanamthitta. 8. Admittedly, the first petitioner is represented by his mother. Thus, I am of the view that difficulty and grievance of the petitioners can be redressed by dispensing with the personal appearance of the first petitioner, unless otherwise felt necessary by the Family Court. 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** ``` TR.P(C) NO. 572 OF 2022 6 ``` **another** [2002 KHC 1889], **Mona Aresh Goel V. Aresh Satya Goel** [2000 KHC 1835], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [2016 KHC 6489], **Santhini V. Vijaya Venkatesh** [2017 (5) KHC 48] and **Aiswarya N.C.V. v. A.S. Saravana Karthik Sha** [2022 (5) KHC 185(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 clear exposition of law by the Supreme Court in the afore-cited decisions and taking into account that the respondent is a young lady and has a child who is only aged 7 years, I am definitely of the view that the prayer of the petitioners to transfer all the proceedings cannot be allowed. Nevertheless, the first petitioner would be at liberty to move the Family Court, Ettumanoor and seek for dispensation of his personal appearance. ``` TR.P(C) NO. 572 OF 2022 7 ``` Resultantly, I dismiss the transfer petition, reserving the right of the first petitioner to move the Family Court, Ettumanoor and seek for dispensation of his personal appearance, which shall be compassionately considered by the Family Court. Sd/- **C.S.DIAS, JUDGE** rmm/02/03/2023 ## **`TR.P(C) NO. 572 OF 2022 8`** ## **`APPENDIX OF TR.P(C) 572/2022`** ``` /PETITIONER ANNEXURES ``` ``` Annexure 1TRUE COPY OF O.P. NO. 636 OF 2020 FOR DIVORCE FILED BY RESPONDENT AGAINST PETITIONER, BEFORE FAMILY COURT ETTUMANOOR ``` ``` Annexure 2TRUE COPY OF O.P. NO. 637 OF 2020 FOR RECOVERY OF GOLD AND MONEY FILED BY RESPONDENT AGAINST PETITIONERS, BEFORE FAMILY COURT ETTUMANOOR Anexure 3TRUE COPY OF O.P. NO. 1118 OF 2020 FOR THE CUSTODY OF MINOR GIRL FILED BY 1ST PETITIONER AGAINST RESPONDENT, BEFORE FAMILY COURT ETTUMANOOR ``` - `Annexure 4 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 6-5-2022 ISSUED TO THE 1ST PETITIONER BY THE DR. ROSHIN MARY VARKEY, ASSOCIATE PROFESSOR AND HEAR OF DEPARTMENT, DEPARTMENT OF PHYSICAL MEDICINE AND REHABILITATION, BELIEVERS CHURCH MEDICALL COLLEGE HOSPITAL, THIRUVALLA` ``` Annexure 5TRUE COPY OF THE POWER OF ATTORNEY EXECUTED ON 11-5-2022 BY THE 1ST PETITIONER IN FAVOUR ON 2ND PETITIONER ```