Jijimol J. v. Mahesh S.

1 ## **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942** **Tr.P(C).No.211 OF 2020** **OP(G&W) 206/2020 OF FAMILY COURT,KOLLAM** ## **PETITIONER/S:** **JIJIMOL J., AGED 30 YEARS D/O.JANARDHANAN, PATTUPARAMBIL HOUSE, VENNALA P.O., CSRA 90, CHALIKKAVATTOM, VYTILA.** **BY ADVS. SHRI.JOBIN ABRAHAM SMT.MEENU THAMPI** ## **RESPONDENT/S:** **MAHESH S., AGED 37 YEARS, S/O.V.SASIDHARAN, MANOJ BHAVAN, PUNALUR, ELAMPAL P.O., KOLLAM, PINCODE - 691 322.** **R1 BY ADV. SRI.MANU RAMACHANDRAN R1 BY ADV. SRI.M.KIRANLAL R1 BY ADV. SRI.T.S.SARATH R1 BY ADV. SRI.R.RAJESH (VARKALA) R1 BY ADV. SHRI.SAMEER M NAIR** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2020, ALONG WITH Tr.P(C).331/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942** **Tr.P(C).No.331 OF 2020** **OP 705/2020 OF FAMILY COURT,ERNAKULAM** ## **PETITIONER/S:** **MAHESH.S AGED 38 YEARS S/O. SASIDHARAN, MANOJ BHAVAN, ELAMPAL, PUNALUR, KOLLAM DISTRICT-691 322.** **BY ADVS. SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SRI.R.RAJESH (VARKALA) SHRI.SAMEER M NAIR** ## **RESPONDENT/S:** **JIJIMOL AGED 31 YEARS D/O. JANARDHANAN, KOCHINAZHIKATHU, JIJITH BHAVANAM, KADAVOOR, PERINADU, KOLLAM-691 601.** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2020, ALONG WITH Tr.P(C).211/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** ## **C.S.DIAS, J. ====================== Tr.P(C) Nos.211 and 331 of 2020 ====================== Dated this the 18[th] day of November, 2020.** ## **COMMON ORDER** Both husband and wife are before this Court seeking transfer of proceedings filed against them, by each other, before the Family Courts at Ernakulam and Kollam. 2. The wife is the petitioner in Tr.P(C) 211/2020 seeking transfer of O.P (G&W) No.206/2020 (Annexure A1), filed under the Guardian and Wards Act, 1890, from the Family Court, Kollam to the Family Court, Ernakulam. The husband has filed Tr.P(C) 331/2020 seeking transfer of OP 705/2020 (Annexure A4), filed by the wife, under the provisions of the Protection of Women from Domestic Violence Act, from the Family Court, Ernakulam to the Family Court, Kollam. As the parties are the same and the transfer petitions are filed seeking transfer of proceedings by the same parties, 4 ## **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** the transfer petitions are being disposed of by this common order. Tr.P(C) 211/2020 is treated as the leading case, and the facts and parties are being referred to in Tr.P(C) 211/2020, where otherwise specifically mentioned. 3. The case of the petitioner in Tr.P(C) 211/2020, in brief, is that she is the estranged wife of the respondent. They have a 5 year old son born in their wedlock. The respondent has filed OP (G & W) 206/2020 (Annexure A1), seeking an order for permanent custody of the child. The petitioner has filed MC 135/2020 (Annexure A2) under Sec.125 of the Code of the Criminal Procedure, seeking an order of maintenance for herself and child and OP 705 of 2020 (Annexure A4). She has also filed Crl M.P No.1192/2020(Annexure A3) before the jurisdictional Magistrate, seeking to forward a complaint, under Sec.156(3) of the Code of Criminal Procedure, alleging that the respondent has committed an offence under Sec.498A of the Indian Penal Code. The petitioner is 5 ## **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** pursuing her graduation in B.A (English) at Ernakulam. It is impossible for the petitioner to travel all the way from Enakulam to Kollam to contest Annexure A1 proceedings. The respondent is residing and working in Ernakulam and, therefore, it would be convenient for both parties to contest the proceedings before the Family Court, Ernakulam. The respondent is a wealthy draftsman by profession. He has his own vehicle and can easily travel from Kollam to Ernakulam. The petitioner has relied on the decision of this Court in **Sithara vs Rajesh [2009 (4) KHC 268],** to fortify her contention that the convenience of the woman has to be looked, into while ordering transfer of the case. 4. The respondent has filed a counter affidavit and has contended in Tr.P C 331/2020, that the allegations pleaded by the petitioner in the transfer petition are false. The petitioner is actually a resident of Kollam, where her parents and child is studying. It is only to harass the respondent that she has filed the proceedings before the Family Court, Ernakulam. 6 **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** Annexure A1 rental deed would establish that the couple was vacated by the landlord from the house in Ernakulam, where they residing on lease, due to the nuisance caused by the petitioner. No prejudice or hardship will be caused to the petitioner, if the proceedings are contested before the Family Court, Kollam. Hence, Tr.P(C) 211/2020 may be dismissed and Tr P(C) 331/2020 may be allowed. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. The learned counsel appearing for the respective parties reiterated the contentions in the respective pleadings. 7. The law in respect of transfer of proceedings, particularly in matrimonial disputes, is no longer resintegra, 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** 7 **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** **Vishwanath Jagtap** [AIR 2016 SC 3584], **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 given due preference, while ordering the transfer of a case from one Court to another. 8. It is an undisputed fact that the petitioner has already preferred Annexures A2, A3 and A4 before the competent Courts at Ernakulam. The respondent is contesting the proceedings before the Courts at Ernakulam. The respondent has only sought for transfer of Annexure A4 from the Family Court, Ernakulam to the Family Court, Kollam. However, Annexures A2 and A3 are pending before the Family Court, Ernakulam and the jurisdictional Magistrate. The respondent has not disputed the fact that he is working in Ernakulam and that he owns a vehicle. It is also not disputed that the couple and their child were residing in Ernakulam, prior to their separation. There is nothing on record to substantiate that the child is 8 ## **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** now living in Kollam, as alleged by the respondent. The law with respect to transfer of the proceedings has been categorically laid down in the aforecited decision, wherein it has been held that comparative hardship of a woman that has to be given due weightage when compared to the hardship of the husband. Therefore, considering all the above discussed aspects, I am of the definite opinion that Tr.P(C) 211/2020 filed by the wife has to be allowed. Moreover, if all the proceedings are consolidated and jointly tried, it would avoid conflict of judgments and save judicial time. 9. In the totality of the facts and circumstances of the case, the law laid down by the Hon'ble Supreme Court in the afore-cited decisions and in exercise of the powers of this Court under Section 24 of the Code of Civil Procedure, I allow Tr. P(C) No.211/2020 by ordering the transfer of O.P. (G&W) 206/2020 from the Family Court, Kollam to the Family Court, Ernakulam. The parties are at liberty to move the Family Court, Ernakulam seeking for consolidation and joint trial of 9 ## **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** all the proceedings. The Registry shall forward a copy of this judgment to the Family Court, Kollam with instructions to forthwith transmit the records in O.P. (G &W) 206/2020 to the Family Court, Ernakulam. The parties are directed to appear before the Family Court Ernakulam, either in person or through counsel, on 12.1.2021. 10. In view of the order in Tr.P(C) No.211/2020, ordering the transferring of O.P. (G &W) 206/2020 from the Family Court, Kollam to the Family Court, Ernakulam, Tr P(C) 331/2020 is dismissed. **Sd/C.S.DIAS** SKS/18.11.2020 **JUDGE** 10 **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** ## **APPENDIX OF Tr.P(C) 211/2020** **PETITIONER'S/S EXHIBITS: ANNEXURE A1** **THE TRUE COPY OF THE PETITION IN OP(G&W) 206/2020 BEFORE THE FAMILY COURT, KOLLAM.** **ANNEXURE A2 THE TRUE COPY OF MC NO.67/2020 IN FAMILY COURT, ERNAKULAM ANNEXURE A3 THE TRUE COPY OF THE CRL MP 1192/2020 IN JFCM-IX, ERNAKULAM ANNEXURE A4 A TRUE COPY OF OP 705/2020 PENDING BEFORE THE FAMILY COURT ERNAKULAM.** 11 **[ Tr.P(C).211/2020, Tr.P(C).331/2020 ]** ## **APPENDIX OF Tr.P(C) 331/2020** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF THE PETITION IN OP(G&W) 206/2020 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOLLAM.** **ANNEXURE A2 THE TRUE COPY OF THE PETITION IN OP(HMA) 275/2020 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOLLAM.** **ANNEXURE A3 THE TRUE COPY OF THE MC NO.67/2020 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. ANNEXURE A4 A TRUE COPY OF THE PETITION IN OP 705/2020 PENDING BEFORE THE FAMILY COURT ERNAKULAM. ANNEXURE A5 A TRUE COPY OF THE REND DEED DATED 16.7.2019.**