High Court of KeralaSingle Judge2022-11-02Transfer petitions dismissed; petitions merited...

Jismi R. v. BiJo Antony (TR.P(C) Nos. 567 & 569 of 2022)

Case / Petition Number:TR.P(C) NOs. 567 & 569 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2022-11-02
Court Decision / Holding: The common order holds that the transfer petitions are meritless and are dismissed. The court declines to exercise discretionary powers under Section 24 CPC to transfer the cases and emphasizes prioritizing the child’s welfare over convenience arguments.
Final Disposition: Transfer petitions dismissed; petitions merited no transfer of proceedings.

Parties to the Case

Appellants / Petitioners

Jismi R.

Respondents

BiJo Antony

Legal Representation & Advocates

Counsels for Petitioners

• K. Siju
• Anjana Kannath
• T. S. Sreekutty

Counsels for Respondents

• C. Y. Vinod Kumar
• D. Mini Rajan

Case Synopsis & Summary

This is a common order of the Kerala High Court addressing two transfer petitions filed by the wife (TR.P(C) Nos. 567/2022 and 569/2022) seeking to transfer matrimonial proceedings from the Family Court, Ettumanoor, to the Family Court, Kollam. The petitions arise from a marriage dated 28.04.2016 with a 3½-year-old child. The wife alleges that she was employed in Bahrain and has since returned to India, residing in Kollam district, whereas the child is in the respondent’s custody in Kottayam district. She contends that appearing before Ettumanoor would cause hardship and that transfer would serve the child’s welfare. The respondent husband opposes transfer, asserting the petitions lack bonafides and that the child’s custody arrangements and convenience should not be disrupted. The court surveys binding precedent (including Sumitha Sing v. Kumar Sanjay and others, Mona Aresh Goel v. Aresh Satya Goel, Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap, Santhini v. Vijaya Venkatesh, and N.C.V. Aishwarya v. A.S. Saravana) to reiterate that transfer decisions must primarily consider the convenience and welfare of the wife and, crucially, the child. The court finds that the child’s welfare favors avoiding hardship and deems the petitions meritless, declining to exercise Section 24 CPC powers. Consequently, the petitions are dismissed and the cases are not transferred to Kollam.

Provisions of Law Cited

Section 24, Code of Civil Procedure

Legal Doctrines & Maxims

Paramount welfare and best interest of the child
Convenience of the woman and children as a criterion for transfer of matrimonial disputes

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-wife submitted that the ongoing O.P. (Divorce) No. 1080/2021 and O.P. (G&W) No. 526/2022 filed in the Family Court Ettumanoor be transferred to the Family Court Kollam for the sake of the child’s welfare and to facilitate her participation in proceedings after returning to India. She contends that the child presently resides with the respondent in Kottayam and that she would face hardship traveling to Ettumanoor; she had relocated to Kollam and is a resident there. She asserts these petitions are not mere expedients but grounded in the welfare of the child and expediency of access to proceedings since she has returned to India.

Contentions of Respondents

The respondent contended that the transfer would disrupt the child's custody arrangements, and effectively argued against relocation of the disputes; he maintained that the petitions were not bonafide attempts to advance the child’s best interests and that the present forum in Ettumanoor is appropriate for timely adjudication.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Sumitha Sing v. Kumar Sanjay and another	2002 KHC 1889	Positive	The court relies on this authority to emphasize that transfer decisions must prioritize the convenience and welfare of the child, guiding the approach to matrimonial dispute transfers.
Mona Aresh Goel v. Aresh Satya Goel	2000 KHC 1835	Positive	Used to support the principle that child welfare and convenience guide transfer decisions, reinforcing a welfare-centric approach.
Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap	2016 KHC 6489	Positive	Cited as part of the body of law that frames transfer decisions around the welfare of the child and convenience concerns.
Santhini v. Vijaya Venkatesh	2017 (5) KHC 48	Positive	Referenced to reinforce the welfare-centric standard in transfer petitions for matrimonial disputes.
N.C.V. Aishwarya v. A.S. Saravana	2022 (5) KHC 185	Positive	Included to corroborate the trend that welfare and convenience govern transfer orders in family matters.

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Extracted Judgment Text

Exact text extracted from official judgment records.

TR.P(C) NOs. 567 & 569 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 TR.P(C) NO. 567 OF 2022** **TO TRANSFER OPDIV 1080/2021 OF FAMILY COURT, KOTTAYAM PETITIONER/S:** JISMI R. AGED 28 YEARS D/O.ROBERT P.Y., PUTHENPURA VEEDU, CHERUMOODU SREE SIVAMUKKU, VELLIMON P.O., VELLIMON PO,PERINAD VILLAGE, KOLLAM DISTRICT, PIN - 691 511. BY ADVS. K.SIJU ANJANA KANNATH T.S.SREEKUTTY ## **RESPONDENT/S:** BIJO ANTONY AGED 32 YEARS S/O.ANTONY, KANNATHUSSERIL HOUSE, CHEERANCHIRA P.O., VAZHAPPALLI VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT, PIN - 686 106. BY ADVS. C.Y. VINOD KUMAR D.MINI RAJAN(K/1000/2006) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2022, ALONG WITH TRPC NO.569/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) NOs. 567 & 569 OF 2022 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 TR.P(C) NO. 569 OF 2022** **TO TRANSFER OPGW 526/2022 OF FAMILY COURT, KOTTAYAM** ## **PETITIONER/S:** JISMI R. AGED 28 YEARS D/O.ROBER P.Y., PUTHENPURA VEEDU, CHERUMOODU SREE SIVAMUKKU, VELLIMON P.O., PERINAD VILLAGE, KOLLAM DISTRICT, PIN - 691 511. BY ADVS. K.SIJU ANJANA KANNATH T.S.SREEKUTTY ## **RESPONDENT/S:** BIJO ANTONY AGED 32 YEARS S/O.ANTONY, KANNATHUSSERIL HOUSE, CHEERANCHIRA P.O., VAZHAPPALLI VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT, PIN - 686 106. BY ADVS. C.Y. VINOD KUMAR D.MINI RAJAN(K/1000/2006) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2022, ALONG WITH TRPC NO.567/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) NOs. 567 & 569 OF 2022 3 ## **COMMON ORDER** The transfer petitions are filed by the wife to transfer OP(Divorce) No.1080/2021 and OP(G&W) No.526/2022 filed by the husband from the Family Court, Ettumanoor to the Family Court, Kollam. 2. The common case of the petitioner-wife in the transfer petitions is that, she was married to the respondent on 28.04.2016 at St.George Church, Changanasserry. They have a 3½ year old son born in the wedlock. The petitioner was employed in Bahrain. Taking advantage of the situation, the respondent had taken the custody of the child with him and thereafter filed O.P. (G&W)No.526/2022, for an order for the permanent custody of the child and O.P. (Divorce) No.1080/2021 for a decree of divorce. The petitioner is permanently residing in Vellimon in Kollam District. The petitioner has returned back to India. It would be difficult for her to appear TR.P(C) NOs. 567 & 569 OF 2022 4 before the Family Court, Ettumanoor. The child was originally residing in Kollam District, but he is now in the custody of the respondent in Kottayam District. The respondent has filed the two cases without any bonafides. Therefore, OP(Divorce) No.1080/2021 and OP(G&W) No.526/2022 may be transferred. Hence, the transfer petitions. 3. Heard; Sri. Siju Kamalasanan, the learned counsel appearing for the petitioner-wife and Sri.C.Y.Vinod Kumar, the learned counsel appearing for the respondent. 4. The point is whether the above cases have to be transferred from the Family Court, Ettumanoor to the Family Court, Kollam. 5. On a reading of the averments in the transfer petitions and the annexures, it is undisputed, that the child born in the wedlock is residing in the parental home of the respondent in Kottayam District. 6. At the time of institution of the original petitions, TR.P(C) NOs. 567 & 569 OF 2022 5 the petitioner was employed in Bahrain. She now asserts that she has returned to India. 7. OP (G&W) No.526/2022 is filed for the custody of the child. Therefore, necessarily, the child would have to be produced before the concerned Family Court. If the cases are transferred from the Family Court, Ettumanoor to the Family Court, Kollam, then the child would have to travel all the way from Kottayam to Kollam to facilitate interim custody to the petitioner. 8. The law with respect to transfer of proceedings, particularly 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** [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 **N.C.V. Aishwarya vs. A.S. Saravana** TR.P(C) NOs. 567 & 569 OF 2022 6 **Karthik Sha** [2022 (5) KHC 185]. 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. Going by the law laid down in the afore-cited decisions, necessarily, it is the convenience of the child, that has to be given due preference and weightage, rather than the convenience of the petitioner. Moreover, the petitioner is not a naive lady, because she is accustomed to travelling, while she was employed in Bahrain. Therefore, no hardship would be caused to her in traveling from Kollam to Ettumanoor to contest the two proceedings. I take the above view considering the paramount welfare and best interest of the child. The petitioner and the respondent may have difference of opinion, but the child cannot be put into hardship. Therefore, I am not inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil TR.P(C) NOs. 567 & 569 OF 2022 **==> picture [7 x 9] intentionally omitted <==** Procedure and order transfer of two cases in order to meet the convenience of the wife, who is alleged to have returned to India. The transfer petitions are meritless and are hence dismissed. Sd/- **C.S.DIAS, JUDGE** rkc/02.11.22 TR.P(C) NOs. 567 & 569 OF 2022 8 ## **APPENDIX OF TR.P(C) 567/2022** PETITIONER ANNEXURES Annexure 1 THE TRUE COPY OF THE PETITION IN OP(DIVORCE) NO.1080/2021 FILED BY THE RESPONDENT/PETITIONER ON THE FILE OF FAMILY COURT, ETTUMANOOR DATED 17/9/2021. TR.P(C) NOs. 567 & 569 OF 2022 9 ## **APPENDIX OF TR.P(C) 569/2022** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE PETITION IN OP(G&W) NO.526/2022 FILED BY THE RESPONDENT/PETITIONER ON THE FILE OF FAMILY COURT, ETTUMANOOR DATED 5/4/2022.