Jyothy Anthraper v. Tomy Joseph (Tr.P(C) Nos.695/2023 and 710/2023)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2023-12-14
Court Decision / Holding: Transfer petitions 695/2023 and 710/2023 are dismissed. The court notes that although the convenience of the petitioner-wife is a relevant consideration, the petitions have already progressed in the Ernakulam Family Court with consolidation and ongoing trial. A transfer at this stage would disrupt the trial and scheduling, and is not warranted by law.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Jyothy Anthraper

Respondents

Tomy Joseph
Johny Joseph

Legal Representation & Advocates

Counsels for Petitioners

• G. Sreekumar (Chelur)

Counsels for Respondents

• Boby Mathew K. Meera (K/587/1991)

Case Synopsis & Summary

These are two Transfer Petition (Civil) Nos.695/2023 and 710/2023 before the Kerala High Court, presented by Jyothy Anthraper seeking transfer of O.P.(Div) No.2740/2021 and O.P.No.2711/2021, both pending before the Family Court, Ernakulam, to the Family Court, Aluva. The petitioner contends that the Family Court at Aluva has since been established and the petitioner is a resident of Aluva; therefore, it is just and convenient that the matter be transferred to the Aluva court. Relying on Sumita Singh v. Kumar Sanjay & another, the petitioner argues that the convenience of the wife must be taken into account while fixing the forum for matrimonial disputes. The respondents oppose the transfer, arguing that the Original Petitions have been consolidated by the Family Court, Ernakulam and trial has already begun, with proof affidavits filed; a transfer at this stage would frustrate the ongoing trial and is not sanctioned by law. The Court acknowledges that the wife’s convenience is a relevant factor but distinguishes this case on the ground that trial has already commenced and the petitions are consolidated; transferring now would disrupt the trial and scheduling. Consequently, the court declines to allow the transfers and dismisses the petitions.

Legal Doctrines & Maxims

Convenience of the wife as a factor in fixing forum for matrimonial disputes (as a principle guiding forum selection)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that since the Family Court at Aluva has been established and the petitioner resides in Aluva, it is just and convenient to transfer O.P.(Div) No.2740/2021 and related matter to the Aluva Family Court. The original petitions were filed in Ernakulam because Aluva was not established earlier. With the Aluva court now functioning, the convenience of the wife must be given weight in determining the proper forum, consistent with the Supreme Court's approach in Sumita Singh v. Kumar Sanjay & another (2001) 10 SCC 41.

Contentions of Respondents

The respondents submit that the petitions have already been consolidated by the Family Court, Ernakulam and trial has begun, including filing of proof affidavits; a transfer at this stage would stall the trial and prejudice the proceedings; while a wife’s convenience is a factor, it cannot override the progress of the ongoing trial or contravene established procedure.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sumita Singh v. Kumar Sanjay & another	(2001) 10 SCC 41	Positive	Cited as authority recognizing that the convenience of the wife is a relevant factor to be weighed while fixing the forum for matrimonial disputes.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 14[TH] DAY OF DECEMBER 2023/23RD AGRAHAYANA,** **1945** **TR.P(C) NO.695 OF 2023** **SEEKING A TRANSFER OP(DIV) 2740/2021 OF FAMILY COURT, ERNAKULAM TO FAMILY COURT, ALUVA** ## **PETITIONER/RESPONDENT:** JYOTHY ANTHRAPER, AGED 37 YEARS, D/O.KURIAN ANTHRAPER, PRESENTLY RESIDING IN THE ADDRESS XI/43, NEAR JYOTHI NIVAS PUBLIC SCHOOL, U.C.COLLEGE P.O, ALUVA, ERNAKULAM DISTRICT, PIN – 683102. BY ADV. G.SREEKUMAR (CHELUR) ## **RESPONDENT/PETITIONER:** TOMY JOSEPH, AGED 43 YEARS, S/O.LATE JOSEPH JOHN, RESIDING IN THE ADDRESS SRAMPICAL HOUSE, KUVEMPUROAD, SHIMOGA, STATE OF KARNATAKA, PIN – 577201. BY ADVS. BOBY MATHEW K.MEERA(K/587/1991) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH Tr.P(C).710/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Tr.P(C) Nos.695 and 710 of 2023** **- 2 -** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 14[TH] DAY OF DECEMBER 2023/23RD AGRAHAYANA,** **1945** **TR.P(C) NO.710 OF 2023 SEEKING A TRANSFER OP NO.2711/2019 OF FAMILY COURT, ERNAKULAM TO FAMILY COURT, ALUVA** ## **PETITIONER/PETITIONER:** JYOTHY ANTHRAPER, AGED 37 YEARS, D/O.KURIAN ANTHRAPER, PRESENTLY RESIDING IN THE ADDRESS XI/43, NEAR JYOTHI NIVAS PUBLIC SCHOOL, U.C.COLLEGE P.O, ALUVA, ERNAKULAM DISTRICT, PIN – 683102. BY ADV.G.SREEKUMAR (CHELUR) ## **RESPONDENT/RESPONDENT:** 1 TOMY JOSEPH, AGED 43 YEARS, S/O.LATE JOSEPH JOHN, RESIDING IN THE ADDRESS SRAMPICAL HOUSE, KUVEMPUROAD, SHIMOGA, STATE OF KARNATAKA, PIN – 577201. 2 JOHNY JOSEPH, AGED 54 YEARS, S/O.LATE JOSEPH JOHN, RESIDING IN THE ADDRESS SRAMPICAL HOUSE, KUVEMPUROAD, SHIMOGA, STATE OF KARNATAKA, PIN – 577201. **THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH Tr.P(C).695/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Tr.P(C) Nos.695 and 710 of 2023** **- 3 -** **O R D E R Dated, this the 14[th] day of December, 2023** **These are petitions seeking transfer of O.P.(Div) No.2740/2021 and O.P.No.2711/2021, both pending before the Family Court, Ernakulam to the Family Court, Aluva. The petitioner would contend that the Original Petitions were filed before the Family Court, Ernakulam, for the reason that the Family Court, Aluva was not established at that time. Now, the Family Court having been established at Aluva and the petitioner being a resident of Aluva, it is only just and convenient that the matter be transferred to the Family Court, Aluva.** **2. Learned counsel would rely upon the decisions of the Honourable Supreme Court in Sumita Singh v. Kumar Sanjay & another [(2001) 10 SCC 41], which specifies that the convenience of the wife** **Tr.P(C) Nos.695 and 710 of 2023** **==> picture [43 x 10] intentionally omitted <==** **is a matter to be taken into account, while fixing the forum for adjudication of matrimonial disputes.** **3. This application is seriously opposed by the learned counsel for the respondents, pointing out that the Original Petitions sought to be transferred have been consolidated by the Family Court, Ernakulam and trial has begun on the same. Proof affidavit has already been filed. A transfer at this juncture, is not going to be of any benefit/use, besides not being sanctioned by law.** **4. Having heard the learned counsel appearing on both sides, this Court is not inclined to allow the instant Transfer Petitions. It is true that the convenience of the wife is surely a matter to be taken into account, while fixing the forum for adjudication of matrimonial disputes, as has been** **Tr.P(C) Nos.695 and 710 of 2023** **- 5 -** **held by the Honourable Supreme Court in a catena of decisions, including the one in Sumita Singh (supra). However, this Court notice a distinguishing feature in this case, that the trial has already begun. The two Original Petitions sought to be transferred have been consolidated by the Family Court, Ernakulam and proof affidavit in lieu of chief examination has already been filed. At this stage, a transfer of these two Original Petitions to the Family Court, Aluva, is not going to benefit any of the parties.** **5. Even though the convenience of the petitioner /wife is espoused as a ground, the same cannot be recognised in the peculiar factual circumstance that the trial has already begun. If the instant transfer sought for is allowed, the already begun trial will be stalled and the matter will have to be listed again for trial by the Family Court,** **Tr.P(C) Nos.695 and 710 of 2023** **==> picture [43 x 10] intentionally omitted <==** **Aluva, depending upon the workload and other matters, which are already listed for trail in** ## **that court.** **In such circumstances, these transfer petitions fail and the same will stand dismissed.** **Sd/-** **C.JAYACHANDRAN, JUDGE** ww **Tr.P(C) Nos.695 and 710 of 2023** ## **- 7 -** ## **APPENDIX OF TR.P(C) 695/2023** ## PETITIONER'S ANNEXURES: ANNEXURE A1 A TRUE COPY OF THE ORIGINAL PETITION FILED BEFORE THE FAMILY COURT, ERNAKULAM AS O P(D) NO. 2740 OF 2021 FILED DATED 16.03.2020. ANNEXURE A2 A TRUE COPY OF THE OBJECTION WITH COUNTER CLAIM FILED BY THE PETITIONER HEREIN IN ANNEXURE-I FILED DATED 06.07.2023. ANNEXURE A3 A TRUE COPY OF THE OBJECTION FILED TO THE COUNTER CLAIM AS PRODUCED AS ANNEXURE-II FILED DATED 30.09.2023. ## RESPONDENT'S ANNEXURES: ANNEXURE R1(A) TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT DATED 09/09/2021 IN TRANSFER PETITION (CIVIL) NO: 874 OF 2020. ANNEXURE R1(B) A TRUE COPY OF THE JUDGMENT DATED 22/08/2022 PASSED BY THIS HON'BLE COURT IN OP (FC) 255 OF 2022. ANNEXURE R1(C) A TRUE COPY OF THE JUDGMENT DATED 10.07.2023 IN OP (CRL) 532 OF 2022 OF THIS HONOURABLE COURT. ANNEXURE R1(D) A TRUE COPY OF THE JUDGMENT DATED 13/09/2023 IN OP (CRL) 704 OF 2023 OF THIS HONOURABLE COURT. **Tr.P(C) Nos.695 and 710 of 2023** ## **- 8 -** ## **APPENDIX OF TR.P(C) 710/2023** ## PETITIONER'S ANNEXURES: |ANNEXURE|1|A TRUE COPY OF THE ORIGINAL PETITION| |---|---|---| |||FILED BEFORE THE FAMILY COURT,| |||ERNAKULAM AS O.P NO.2711 OF 2019 FILED| |||DATED 18.11.2019.| |ANNEXURE|2|A TRUE COPY OF THE OBJECTION WITH| |||COUNTER CLAIM FILED BY THE RESPONDENTS| |||HEREIN IN ANNEXURE-I FILED DATED| |||7.12.2022.| |ANNEXURE|3|A TRUE COPY OF THE OBJECTION AND THE| |||REPLICATION FILED TO ANNEXURE-II FILED| |||DATED 21.3.2023.|