Khadeeja Abdul Karim v. JameenuDeen A

TR.P(C) NO. 554 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 TR.P(C) NO. 554 OF 2022** **TO TRANSFER OP 2124/2022 OF FAMILY COURT,TRIVANDRUM** **PETITIONER/S:** KHADEEJA ABDUL KARIM AGED 35 YEARS D/O. ABDUL KARIM, KHADEEJA MANZIL, VADAKKEKARA P.O., N. PARRU, ERNAKULAM DISTRICT 683 522. BY ADVS. RAJEE P MATHEWS L.PREETHA AMRUTHA P S VIJAY SANKAR V.H. SRUTHY UNNIKRISHNAN AISWARYA E J VETTIKOMPIL ## **RESPONDENT/S:** JAMEENUDEEN A AGED 38 YEARS THE MOBILE CARE/TMC INSTITUTE OF MOBILE TECHNOLOGY RNP BUILDING, VELLAYAMABLAM, SASTHAMANGALAM ROAD, TRIVANDRUM DISTRICT 695 010. BY ADVS. JOHN JOSEPH ( ROY) S.KRISHNANKUTTY(K/000792/2016) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) NO. 554 OF 2022 2 ## **ORDER** The transfer petition is filed under Section 24 of the Code of Civil Procedure, 1908 (in short, “Code”), seeking to transfer OP(G&W) No.2124/2022 (Annexure-A) from the Family Court, Thiruvananthapuram to the Family Court, Ernakulam. 2. The petitioner’s case in brief, in the memorandum of transfer petition is that, she is the wife of the respondent. It is the 2[nd] marriage of the couple. They have two children born in their wedlock, who are now aged 5½ years and 3½ years. The marital relationship is strained. The respondent has filed Annexure-A for the custody of the children. The petitioner received notice in Annexure-A to produce the children before the Family Court, Thiruvananthapuram. The petitioner and the children are residing in North Paravur, Ernakulam, which is 226 kilometers away from their residence. It cause severe hardship and inconvenience to the petitioner to contest Annexure-A before the Family Court, Thiruvananthapuram. Hence, the transfer petition. TR.P(C) NO. 554 OF 2022 3 3. The respondent has filed a counter affidavit denying the allegations in the transfer petition. He had contended that the petitioner is living in Thiruvananthapuram as can be gathered from Annexure R1 mortgage deed, which shows the house has been taken for the period from 01.07.2021 to 30.06.2024. Likewise, Annexures R2 to R5 prove that the children are studying in the Nursery Schools in Thiruvananthapuram. Similarly Annexure R6 order passed by the Court of Sessions Judge VI, Thiruvananthapuram establishes the address of the petitioner in Thiruvananthapuram. Annexure R7 report filed by the Mannanthala Police before the Human Rights Commission also shows that the petitioner is a resident of Thiruvananthapuram. The transfer petition is without any merit and the same may be dismissed. 4. The petitioner has filed a reply affidavit denying the allegations in the counter affidavit. She has categorically pleaded that she is a resident of North Paravur, Ernakulam District. According to her, the documents produced by the respondent all pertain to the period, while she was TR.P(C) NO. 554 OF 2022 4 residing in Thiruvananthapuram. Subsequent to their separation, the petitioner has filed OP No.3469/2022 (Annexure-C) and MC No.337/2022 (Annexure-D) before the Family Court, Ernakulam, against the respondent. The respondent is contesting the said proceedings before the Family Court, Ernakulam. Therefore, no inconvenience or hardship would be caused to the respondent in Annexure-A being transferred. 5. Heard; Smt.Rajee P. Mathews, the learned counsel appearing for the petitioner and Sri.John Joseph, the learned counsel appearing for the respondent. 6. On an analysis of the pleadings and materials on record, it is evident that Annexures C and D are now pending before the Family Court, Ernakulam. The respondent has not sought for transfer of the said proceedings. Moreover, even going by Annexure R6 order produced by the respondent, it is discernible that the petitioner's permanent residence is at North Paravur, Ernakulam District. 7. The respondent does not have a case that the TR.P(C) NO. 554 OF 2022 5 children are being maintained by him. Going by the allegations in Annexure-A, it is unambiguous that the children are in the custody of the respondent. 8. Annexure-A is filed for the custody of the children. Therefore, the children would have to be produced before the Family Court, Thiruvananthapuram, to facilitate the interim custody and access of the children to the respondent. 9. The law with respect to transfer of proceedings, particularly matrimonial disputes, is no longer res-integra, 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]. The Hon’ble Supreme Court has held that it is the convenience of the woman and children that has TR.P(C) NO. 554 OF 2022 6 to be looked into, while ordering the transfer of a case from one Court to another. 10. In the light of the law laid down in the afore-cited decisions, the pleadings and materials on record, the totality of the facts and circumstances of the case, especially the fact that the Annexures C and D are already pending before the Family Court, Ernakulam, and that the petitioner and the two minor children are residing in Ernakulam, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure and order the transfer of Annexure-A from the Family Court, Thiruvananthapuram to the Family Court, North Paravur, so that the cases between the parties can be consolidated and jointly tried, which will save precious judicial time and avoid conflict of decisions. In the result, I allow the transfer petition as follows:- - (i) OP(G&W) No.2124/2022 is transferred from the Family Court, Thiruvananthapruam to the Family Court, North Paravur. - (ii) The parties would be at liberty to move the Family TR.P(C) NO. 554 OF 2022 7 Court, North Paravur 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, Thiruvananthapuram with instructions to forthwith transmit the records in Annexure-A to the Family Court, North Paravur. The Registry shall also forward a copy of this order to the Family Court, Ernakulam with instructions to forthwith transmit the records in Annexures C and D to the Family Court, North Paravur. - (iv) The Family Court, North Paravur shall, immediately on receipt of the records in Annexure-A, post the case along with Annexures C and D immediately after they are transferred to the said court. Sd/- ## **C.S.DIAS, JUDGE** rkc/09.02.23 TR.P(C) NO. 554 OF 2022 8 ## **APPENDIX OF TR.P(C) 554/2022** PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE O.P. (G & W), NO. 2124/2022 PENDING BEFORE THE FAMILY COURT, TRIVANDRUM. RESPONDENT ANNEXURES ANNEXURE-R1 TRUE COPY OF THE THREE YEARS MORTGAGE AGREEMENT (OTTI) STARTING FROM 01.07.2021 TO 30.06.2024 DATED 01.07.2021 ANNEXURE-R2 TRUE COPY OF THE RECEIPT OF SCHOOL FEE PAYMENT DATED 27.04.2022 ANNEXURE-R3 TRUE COPY OF THE RECEIPT OF SCHOOL FEE PAYMENT DATED 07.10.2022 ANNEXURE-R4 TRUE COPY OF THE ADMISSION CARD DATED 28.04.2022 ANNEXURE-R5 TRUE COPY OF THE LETTER ISSUED BY THE GURUKULAM NURSERY SCHOOL STATING THE PAYMENT OF ADMISSION AND MONTHLY FEES PAID BY THE RESPONDENT DATED 13.09.2022 PETITIONER ANNEXURES ANNEXURE B A TRUE COPY OF RATION CARD RESPONDENT ANNEXURES ANNEXURE R6 TRUE COPY OF THE ORDER IN CR. M.C.NO.1571 OF 2022 DATED 29-07-2022 OF THE HON'BLE DISTRICT -VI ,THIRUVANANTHAPURAM, DISMISSING THE ANTICIPATORY BAIL APPLICATION ANNEXURE R7 TRUE COPY OF THE REPORT FILED BY THE STATION HOUSE OFFICER OF MANNANTHALA POLICE STATION BEFORE THE KERALA HUMAN RIGHTS COMMISSION DATED 03-10-2022 PETITIONER ANNEXURES TR.P(C) NO. 554 OF 2022 9 ANNEXURE C A TRUE COPY OF THE MEMORANDUM OF THE OP 3469/2022 ANNEXURE D A TRUE COPY OF THE MEMORANDUM OF THE MC 337/2022