Kala Nasarudheen v. Fashana P, Haroon Al Rasheed and Abdul Jaleel

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 ``` ``` TR.P(C) NO. 174 OF 2021 OP 689/2019 OF FAMILY COURT, MALAPPURAM ``` ## **`PETITIONER:`** ``` KALA NASARUDHEEN AGED 50 YEARS W/O NASARUDHEEN, KUZHAKUMURRI, PERIGITTUKAVU, ELLAVANCHRI P.O.,KOLLENGOD, PALAKKAD-678 508. ``` ``` BY ADV SUSEEL M.MENON ``` ## **`RESPONDENTS:`** ``` 1FASHANA P AGED 23 YEARS D/O HAMSAKOYA P, PARAPPARAMAL, KOTTAPURAM, ANDHIYURKUNNU P.O.,MALAPPURAM-673 637. 2HAROON AL RASHEED, AGED 30 YEARS S/O NASARUDHEEN, KUZHAKUMURRI, PERIGITTUKAVU, ELLAVANCHERI P.O.KOLLENGOD PALAKKAD-678 508. 3ABDUL JALEEL, AGED 28 YEARS S/O NASARUDHEEN, KUZHAKUMURRI, PERIGITTUKAVU, ELLAVANCHERI P.O.KOLLENGOD PALAKKAD-678 508. ``` ``` BY ADV K.RAKESH ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` TR.P(C) NO. 174 OF 2021 2 ``` ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, to transfer O.P. No.689/2019 (Annexure A1) from the Family Court, Malappuram to the Family Court, Palakkad. 2. The petitioner’s case, in brief, in the memorandum of transfer petition is that, she is the mother of the respondents 2 and 3. The first respondent is the wife of the second respondent. The marital relationship between the respondents 1 and 2 is strained. The first respondent has filed Annexure A1 against the petitioner and the respondents 2 and 3, for a decree for return of gold ornaments. The second respondent is employed abroad. The petitioner is suffering from various ailments as evidenced by ``` TR.P(C) NO. 174 OF 2021 3 ``` Annexures A2 and A3. Therefore, it would be difficult for her to travel from Palakkad to Malappuram to contest Annexure A1. Hence, the transfer petition. 3. The first respondent has filed a counter affidavit denying the allegations in the transfer petition. She has contended that Annexure A1 is filed not only for a decree of return of gold ornaments, but also for money, movable articles and past maintenance. The personal presence of the petitioner is not at all necessary for the disposal of Annexure A1, as the dispute is principally between her and the second respondent. Even though an order has been passed in M.C.No.359/2019 by the Family Court, Malappuram, the second respondent has willfully refused to comply with the order. There is no person to chaperone her from Malappuram to Palakkad. If the case is transferred, the distance from her house to the Family Court, Palakkad, is more than 100 kms. The ``` TR.P(C) NO. 174 OF 2021 4 ``` transfer petition may be dismissed. 4. Heard; Sri.Suseel M. Menon, the learned counsel appearing for the petitioner and Sri.K.Rakesh, the learned counsel appearing for the first respondent. Service is complete on the respondents 2 and 3. 5. The point is whether Annexure A1 is to be transferred. 6. Undisputedly, Annexure A1 was filed in the year 2019. It is also on record that there was an earlier proceeding between the respondents 1 and 2 as M.C. No.359/2019 before the Family Court, Malappuram. The second respondent was set ex-parte and he has not paid amount towards maintenance of the first any respondent. The first respondent is a vagrant 24 year old lady. 7. The principal ground for the transfer projected by the petitioner is that, due to her medical condition, ## **`TR.P(C) NO. 174 OF 2021 5`** she will not be in a position to travel from her residence at Palakkad to the Family Court, Malappuram to contest Annexure A1. 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 **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. ``` TR.P(C) NO. 174 OF 2021 6 ``` 9. On a consideration of the pleadings and materials on record, I am of the definite view that the hardship of the petitioner can be redressed by dispensing with her personal appearance before the Family Court, Malappuram, especially since the dispute is between the respondents 1 and 2 in connection with their marriage. Therefore, if Annexure A1 is transferred, it will certainly cause severe hardship and prejudice to a 24 year old lady, who has been knocking at the doors of courts from 2019 onward for maintenance and other ancillary reliefs. Thus, I am not inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure and order the transfer of Annexure A1. In the result, the transfer petition is disposed as follows:- (i) The request of the petitioner to transfer O.P ``` TR.P(C) NO. 174 OF 2021 7 ``` No.689/2019 from the Family Court, Malappuram to the Family Court, Palakkad is rejected. (ii) The Family Court, Malappuram shall not insist for the personal appearance of the petitioner, unless it is imperative. (iii) Taking into account the fact that Annexure A1 is of the year 2019, the Family Court, Malappuram shall make every endeavour to consider and dispose of O.P. No.689/2019, in accordance with law, as expeditiously as possible. Sd/- **C.S.DIAS, JUDGE** rmm/19/10/2022 ``` TR.P(C) NO. 174 OF 2021 8 ``` ## **`APPENDIX OF TR.P(C) 174/2021`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1THE COPY OF THE OP 689/2019 DATED 18.10.2019 ANNEXURE A2THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 27.11.2019 ANNEXURE A3THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 19.1.2021 ```