JITHIN JUSTINE v. ANCY CYRIL

TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 TR.P(C) NO. 411 OF 2022** **TO TRANSFER OP(DIV) 1174/2020 OF FAMILY COURT,KOLLAM PETITIONER/S:** JITHIN JUSTINE AGED 35 YEARS S/O JUSTINE P.A., PULIKATHARA HOUSE, MATHA NAGAR, ADIMALI PO, IDUKKI (DIST), PIN - 685561 BY ADV GERRY DOUGLES S. ## **RESPONDENT/S:** ANCY CYRIL AGED 30 YEARS D/O CYRIL JOSEPH, FLAT NO. 3D, SFS ETERNIA, NH-47, PATHADIPALAM, EDAPALLY, ERNAKULAM (DIST), PIN - 682 033 (WORKING AS ASSISTANT MANAGER, BANKING OPERATIONS GROUP, THE SOUTH INDIAN BANK LTD., SUDHAKAR PLAZA, KALAMASSERY - 683 104) BY ADVS. ANEESH JAMES JIJO THOMAS M.D.BEENA THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH Tr.P(C).45/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 TR.P(C) NO. 45 OF 2023** **TO TRANFER OPGW 190/2022 OF FAMILY COURT,ERNAKULAM PETITIONER/S:** ANCY CYRIL AGED 30 YEARS, D/O. CYRIL JOSEPH, THUPPASSERIL HOUSE, PUTHUKKADU P.O., CHAVARA, KOLLAM, PIN - 691585 BY ADVS. ANEESH JAMES JIJO THOMAS M.D.BEENA ## **RESPONDENT/S:** JITHIN JUSTINE AGED 35 YEARS, S/O. JUTINE P.A., PULICKATHARA HOUSE, MATHA NAGAR, ADIMALI P.O., IDUKKI DISTRICT,, PIN - 685561 BY ADV GERRY DOUGLAS THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH Tr.P(C).411/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 TR.P(CRL.) NO. 43 OF 2022** ## **TO TRANSFER MC 282/2020 OF FAMILY COURT,KOLLAM** **PETITIONER/S:** JITHIN JUSTINE AGED 35 YEARS PULIKATHARA HOUSE, MATHA NAGAR, ADIMALI PO, IDUKKI (DIST), PIN - 685 561, PIN - 685561 BY ADV GERRY DOUGLES S. ## **RESPONDENT/S:** ARYAN ABRAM, AGED 4/2022, REPRESENTED BY HIS MOTHER ANCY CYRIL, FLAT NO. 3D, SFS ETERNIA, NH-47, PATHADIPALAM, EDAPALLY, ERNAKULAM (DIST), PIN - 682 033 (C/O ANCY CYRIL, ASSISTANT MANAGER, BANKING OPERATIONS GROUP, THE SOUTH INDIAN BANK LTD., SUDHAKAR PLAZA, KALAMASSERY - 683 104), PIN - 683104 BY ADVS. Aneesh James JIJO THOMAS(K/161/1997) M.D.BEENA(K/1732/1995) THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH Tr.P(C).411/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 TR.P(C) NO. 414 OF 2022** **TO TRANSFER OP 1175/2020 OF FAMILY COURT,KOLLAM** **PETITIONER/S:** 1 JITHIN JUSTINE AGED 35 YEARS PULIKATHARA HOUSE, MATHA NAGAR, ADIMALI PO, IDUKKI (DIST), PIN - 685 561, PIN - 685561 2 JUSTINE PA AGED 60 YEARS S/O P.A. ANTONY, PULIKATHARA HOUSE, MATHA NAGAR, ADIMALI PO, IDUKKI (DIST), PIN - 685 561 3 VALSA JUSTINE,AGE 55/2022, W/O JUSTINE P.A., PULIKATHARA HOUSE, MATHA NAGAR, ADIMALI PO, IDUKKI (DIST), PIN - 685 561 4 SHARON JUSTINE,AGE 30/2022, D/O JUSTINE PA, PULIKATHARA HOUSE, MATHA NAGAR, ADIMALI PO, IDUKKI (DIST), PIN - 685 561 BY ADV GERRY DOUGLES S. ## **RESPONDENT/S:** ANCY CYRIL AGED 30 YEARS D/O CYRIL JOSEPH, FLAT NO. 3D, SFS ETERNIA, NH-47, PATHADIPALAM, EDAPALLY, ERNAKULAM (DIST), PIN - 682 033 (WORKING AS ASSISTANT MANAGER, BANKING OPERATIONS GROUP, THE SOUTH INDIAN BANK LTD., SUDHAKAR PLAZA, KALAMASSERY - 683 104) BY ADVS. TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 5 ANEESH JAMES JIJO THOMAS M.D.BEENA THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH Tr.P(C).411/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 6 TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 ## **COMMON ORDER** As these transfer petitions pertain to the disputes arising out of the marriage between Jithin Justine (husband) and Ancy Cyril (wife), they are being disposed of by this common order. 2. Tr.P(C) Nos.411/2022, 414/2022 and Tr.P(Crl) No.43/2022 are filed by the husband against the wife to transfer OP Nos.1174/2020, 1175/2020 and MC No.282/2020, respectively, from the Family Court, Kollam to the Family Court, Ernakulam. Tr.P(C) No.45/2023 is filed by the wife against the husband to transfer OP(G&W) No.190/2022 from the Family Court, Ernakulam to the Family Court, Kollam.. For the sake of convenience, the parties and pleadings are referred to in Tr.P(C) No.414/2022, which is treated as the leading case. 3. The common case of the husband, his parents and sister – the petitioner in Tr.P(C) No.414/2022, in the transfer petition is that the the 1[st] petitioner is the TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 **==> picture [7 x 9] intentionally omitted <==** husband of Ancy Cyril (respondent-wife). The petitioners 2 to 4 are the father, mother and sister of the 1[st] petitioner. The marriage between the 1[st] petitioner and the respondent was solemnized on 15.04.2015. They have a son born in the wedlock on 23.11.2018. The marital relationship is strained. The respondent has filed OP No.1174/2020 against the 1[st] petitioner, OP No.1175/2020 against the petitioners, MC No.282/2020 against the 1[st] petitioner before the Family Court, Kollam, for a decree of divorce, decree of return of money and gold ornaments and order of maintenance for the child, respectively. The 1[st] petitioner has filed OP No.190/2020 and 2305/2022 before the Family Court, Ernakulam, against the respondent, for the custody of the child and a decree for restitution of conjugal rights, respectively. The respondent is employed in the South Indian Bank, Kalamassery Branch and is residing along with the child in Edappilly. It was in the above circumstances, the 1[st] petitioner filed the above two original petitions before the TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 8 Family Court, Ernakulam as the child is ordinarily residing within the jurisdiction of the said court. The 1[st] petitioner is exercising his visitorial rights over the child in the premises of the Family Court, Ernakulam. As the respondent and child are residing within the jurisdiction of the Family Court, Ernakulam, it would be just and expedient that all the cases between the parties be tried by the same Court, which in turn would avoid multiplicity of proceedings, save precious judicial time and also conflict of decision. Hence, the transfer petitions. 4. The respondent has filed Tr.P(C) No. 45/2023 against the 1[st] petitioner, for the transfer of OP No.190/2022 from the Family Court, Ernakulam to the Family Court, Kollam. It is her case that she has filed OP Nos.1174/2020, 1175/2020 and MC No.282/2020 before the Family Court, Kollam because she is a permanent resident of Kollam. The marriage was solemnized in Kollam and the parties last resided within the jurisdiction TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 9 of the Family Court, Kollam. The 1[st] petitioner has appeared before the Family Court, Kollam and is contesting the cases there. Even though the 1[st] petitioner has instituted OP No.2305/2022 before the Family Court, Ernakulam, the respondent has not received any notice from the said Court. The Family Court, Ernakulam lacks territorial jurisdiction to entertain the said original petition. The petitioner intends to raise a preliminary issue on the maintainability of the petition before the said court. The petitioner is employed as an Assistant Manager in South Indian Bank, Vyttila branch. At present the respondent is a working mother. Recently, her father suffered a stroke and is bedridden. He has shifted back to Chavara, Kollam. The respondent travels along with her mother and child to Kollam weekend. The every respondent has opted for a transfer of her employment to Chavara, on account of the medical condition of her father. Her transfer is due in March 2023. If the transfer materialises and the cases are transferred to Ernakulam, TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 10 it would cause inconvenience and hardship to the respondent. Hence, Tr.P(C) No.45/2023 may be allowed and the transfer petitions filed by the husband and his relatives may be dismissed. 5. Heard; Sri.Jerry Douglas, the learned Counsel appearing for the petitioners and Sri.Aneesh James, the learned Counsel appearing for the respondent wife. 6. The question is which of the transfer petitions is to be allowed ? 7. It is an undisputed fact that the respondent is working as the Branch Manager in the South Indian Bank in Ernakulam from June 2018 i.e., for the last 5½ years. She is residing with her child in Ernakulam from then on, and the child is pursuing his studies in Ernakulam. 8. The 1[st] petitioner has filed OP No.190/2022 for TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 11 permanent custody of the child before the Family Court, Ernakulam, as the child is an ordinary resident of Ernakulam in view of Section 9 of the Guardian and Wards Act, 1890. The Family Court, Ernakulam has granted the 1[st] petitioner visitorial right over the child, which is being exercised. Furthermore, it can be gathered that OP No.2305/2022 is filed before the Family Court, Ernakulam by the 1[st] petitioner against the respondent, for a decree for restitution of conjugal rights. 9. On an overall appreciation of the pleadings and materials on record, I am of the definite view that OP Nos.1174/2020, 1175/2020 and MC No.282/2020 have to be transferred from the Family Court, Kollam to Family Court, Ernakulam, which only be convenient for both sides and would avoid multiplicity of proceedings, conflict in views and save precious judicial time. It would be preposterous to transfer the cases to Family Court, Kollam in anticipation of transfer of employment of the 12 TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 respondent. 10. 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 Karthik Sha** [2022 (5) KHC 185], wherein it is 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. 11. Going by the law laid down by the Honourable Supreme Court in the afore-cited decisions, the pleadings and materials on record and the fact that all parties are presently residing in Ernakulam, I am inclined to exercise TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 **==> picture [13 x 9] intentionally omitted <==** the discretionary powers of this Court under Section 24 of the Code of Civil Procedure by ordering all the cases between the parties to be tried by the Family Court, Ernakulam. Resultantly, I dispose of the transfer petitions as follows: - (i) Tr.P(C) No.45/2023 is dismissed. - (ii) Tr.P(C) Nos.411/2022, 414/2022 and Tr.P(Crl) No.43/2022 are allowed by ordering the withdrawal and transfer of OP Nos.1174/2020, 1175/2020 and MC No.282/2020 from the Family Court, Kollam to the Family Court, Ernakulam. - (ii) The parties would be at liberty to move the Family Court, Ernakulam and seek for consolidation and joint trial of all the cases between them. - (iii) The Registry shall forward a copy of this order to the Family Court, Kollam with instructions to forthwith transmit the records in OP Nos.1174/2020 TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 14 and 1175/2020 and MC No.282/2020 to the Family Court, Ernakulam. - (iv) The Family Court, Ernakulam shall, immediately on receipt of the records in the above three cases, post the cases along with OP No.190/2022. Sd/- **C.S.DIAS JUDGE** rkc/23.03.23 TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 15 ## **APPENDIX OF TR.P(C) 45/2023** PETITIONER ANNEXURES Annexure1 A TRUE COPY OF THE PETITION IN O.P. (DIV) NO. 1174/2020 ON THE FILES OF THE FAMILY COURT, KOLLAM DATED 30.10.2020 Annexure A2 A TRUE COPY OF THE PETITION IN O.P. NO. 1175/2020 ON THE FILES OF THE FAMILY COURT, KOLLAM DATED 28/10/2020 Annexure3 A TRUE COPY OF THE PETITION IN M.C. NO. 282/2020 ON THE FILES OF THE FAMILY COURT, KOLLAM DATED 30.10.2020 Annexure A4 A TRUE COPY OF THE PETITION IN O.P (G& W) NO. 190/2022 ON THE FILES OF THE FAMILY COURT, ERNAKULAM DATED 22/1/2022 Annexure A5 A TRUE COPY OF THE MEDICAL VISIT SUMMARY IN RESPECT TO THE FATHER OF THE PETITIONER ISSUED BY MEDIHOME FAMILY CLINIC PVT. LTD. DATED 15/10/2022 RESPONDENT ANNEXURES ANNEXURE R1 OBJECTION FILED BY PETITIONER IN GOP 190/2022 ANNEXURE R2 OBJECTION FILED BY PETITIONER IN GOP 190/2022 ANNEXURE R3 INSTAGRAM SCREENSHOT ANNEXURE R4 COPY OF VIOLATION PETITION FILED IN GOP 190/2022 ANNEXURE R5 FIR REGISTERED BY PETITIONER TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 ## 16 ## **APPENDIX OF TR.P(CRL.) 43/2022** ## PETITIONER ANNEXURES Annexure1 TRUE COPY OF MC NO. 282/2020 PENDING BEFORE HON'BLE FAMILY COURT KOLLAM Annexure2 TRUE COPY OF OBJECTION FILED BY RESPONDENT IN OP (G&W) NO. 190/2022 PENDING BEFORE HON'BLE FAMILY COURT ERNAKULAM TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 17 ## **APPENDIX OF TR.P(C) 414/2022** PETITIONER ANNEXURES Annexure1 TRUE COPY OF OP NO. 1175/2020 PENDING BEFORE HON'BLE FAMILY COURT KOLLAM Annexure2 TRUE COPY OF OBJECTION FILED BY RESPONDENT IN OP (G&W) NO. 190/2022 PENDING BEFORE HON'BLE FAMILY COURT ERNAKULAM Annexure A3 TRUE COPY OF OP NO. 2305/2022 PENDING BEFORE HON'BLE FAMILY COURT ERNAKULAM RESPONDENT ANNEXURES ANNEXURE R1 A TRUE COPY OF THE MEDICAL VISIT SUMMARY IN RESPECT TO THE FATHER OF THE RESPONDENT ISSUED BY MEDIHOME FAMILY CLINIC PVT. LTD. TR.P(C) NO. 411 & 414 OF 2022, 45 OF 2023 & TRP(CRL)43 OF 2022 18 ## **APPENDIX OF TR.P(C) 411/2022** PETITIONER ANNEXURES ANNEXURE1 TRUE COPY OF OP (DIV) NO. 1174/2020 PENDING BEFORE HON'BLE FAMILY COURT KOLLAM ANNEXURE2 TRUE COPY OF OBJECTION FILED BY RESPONDENT IN OP (G&W) NO. 190/2022 PENDING BEFORE HON'BLE FAMILY COURT ERNAKULAM ANNEXURE A3 TRUE COPY OF OP NO. 2305/2022 PENDING BEFORE HON'BLE FAMILY COURT ERNAKULAM RESPONDENT ANNEXURES ANNEXURE R1(A) A TRUE COPY OF THE MEDICAL VISIT SUMMARY IN RESPECT TO THE FATHER OF THE RESPONDENT ISSUED BY MEDIHOME FAMILY CLINIC PVT. LTD.