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High Court of KeralaSingle JudgeThe petition is allowed; OP 385/2022 is transfe...

Liji Preman v Vinod Kumar V, Dixen Xavier & Sanal Stephen (Transfer Petition under Sec. 24 CPC)

Case / Petition Number:Tr.P (C) No. 341 of 2022
Neutral Citation:/null

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C. S. Dias
Judgment Date
2022-11-23
Court Decision / Holding
Transfer petition allowed. OP 385/2022 is transferred from the Family Court, Ernakulam to the Family Court, Kannur. The parties may move for consolidation with O.P.(G&W) 523/2022 filed in Kannur. The Registry shall transmit the records of Annexure 1 to Kannur immediately, and Kannur shall treat the transferred matter along with Annexure 1 and O.P.(G&W) 523/2022 for a consolidated hearing.
Final Disposition
The petition is allowed; OP 385/2022 is transferred to Kannur and may be consolidated with related matters. Records to be transmitted to Kannur for immediate action alongside O.P.(G&W) 523/2022.

Parties to the Case

Appellants / Petitioners

  • Liji Preman

Respondents

  • Vinod Kumar V
  • Dixen Xavier
  • Sanal Stephen

Legal Representation & Advocates

Counsels for Petitioners

  • • M.V. Amaresan
  • • S.S. Aravind

Counsels for Respondents

  • • V. John Mani
  • • Jackson Johny

Case Synopsis & Summary

This High Court of Kerala, Ernakulam, decides Tr.P(C) No. 341 of 2022, a transfer petition under Section 24 CPC seeking to move OP 385/2022 from the Family Court, Ernakulam to Kannur. The petitioner, Liji Preman, wife of the first respondent, seeks consolidation with related proceedings, including O.P.(G&W) 523/2022 before Kannur, and points to the court’s earlier order in Tr.P(C) No.177/2022 (dated 14.07.2022) transferring O.P.203/2022 from Ernakulam to Kannur. The first respondent has already filed Annexure 3 before Kannur to appoint himself guardian of their child and contests the Kannur proceedings. The respondents contend that Ernakulam has jurisdiction over OP 385/2022 and that Section 16 CPC cannot be overridden by transfer. After hearing, the court notes that the law on transfer of matrimonial disputes is settled and no longer res integra, citing 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 Aiswarya N.C.V. v. A.S. Saravana Karthik Sha, emphasizing that the convenience of the woman and children governs transfer decisions. In light of these authorities and the prior transfer order, the court exercises its discretion under Sec. 24 CPC to transfer Annexure 1 to Kannur to consolidate all cases, overriding Sec. 16-20 CPC. The petition is allowed; OP 385/2022 is transferred to Kannur, with liberty to consolidate with Annexure 3 and O.P.(G&W) 523/2022, and records to be transmitted to Kannur for joint hearing.

Provisions of Law Cited

Section 24 of the Code of Civil ProcedureSections 16 to 20 of the Code of Civil Procedure

Legal Doctrines & Maxims

  • Res integra (no longer resintegra) as a settled principle for transfer of matrimonial disputes; Convenience of the woman and children to be looked into in transfer decisions (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; Aiswarya N.C.V. v. A.S. Saravana Karthik Sha)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that consolidation with related proceedings is in the interests of justice and that Sec. 24 CPC vests the court with the power to transfer matrimonial disputes to Kannur for unified adjudication, especially in light of the earlier transfer order (Tr.P(C) No.177/2022) and Annexure 3 before Kannur seeking guardianship. The applicant argues that consolidation would prevent conflicting decisions and save judicial time; the court should exercise its discretion under Sec. 24 CPC notwithstanding Sections 16–20 CPC.

Contentions of Respondents

The respondents submit that the property lies within the jurisdiction of the Ernakulam Family Court; only that court has jurisdiction to entertain original jurisdiction under Section 16 CPC, and thus the transfer petition should be dismissed to avoid disturbing existing proceedings.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Sumitha Sing v. Kumar Sanjay and another2002 KHC 1889PositiveCited as binding authority that transfer of matrimonial disputes should be guided by the convenience of the wife and children; supports the principle that law on transfer is settled.
Mona Aresh Goel v. Aresh Satya Goel2000 KHC 1835PositiveUsed to reinforce the convenience principle in transfer of matrimonial disputes; not overruled in this judgment.
Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap2016 KHC 6489PositiveCited to corroborate settled law on transfer of matrimonial disputes focusing on convenience and welfare considerations.
Santhini v. Vijaya Venkatesh2017 (5) KHC 48PositiveAffirms the welfare/convenience-based approach to transfer in matrimonial matters; cited as part of settled scheme.
Aiswarya N.C.V. v. A.S. Saravana Karthik Sha2022 (5) KHC 185(SC)PositiveSC-level endorsement of convenience-based transfer principle; used to reinforce the overriding policy in Sec.24 transfers.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 TR.P(C) NO. 341 OF 2022 ``` ``` OP 385/2022 OF FAMILY COURT,ERNAKULAM ``` ## **`PETITIONER/1ST RESPONDENT:`** ``` LIJI PREMAN AGED 31 YEARS D/O. K. PREMACHANDRAN, VIJI VIHAR, GRAMAM WEST, PAYYANNUR AMSOM DESOM, P.O. PAYYANNUR, KANNUR DISTRICT, PIN - 670307. ``` ``` BY ADVS. M.V.AMARESAN S.S.ARAVIND ``` ## **`RESPONDENTS/PETITIONER 7 RESPONDENTS 1 AND 2:`** ``` 1VINOD KUMAR V AGED 36 YEARS S/O. VIAJAYA KUMAR.K, 'REVATHY', KIZHAKKUMBHAGAM, NEAR ALAN FELDMAN PUBLIC SCHOOL, KAZHAKKOOTTAM, MENAMKULAM, THIRUVANANTHAPURAM - 695582. 2DIXEN XAVIER, AGED 47 YEARS S/O. P.T. XAVIER, MANAGING PARTNER TONY DANIEL HOMES, RESIDING AT 10A, SWAPNIL APARTMENTS, KALOOR, KADAVANTHARA ROAD, COCHIN, PIN - 682017. ``` ``` 3SANAL STEPHEN AGED 33 YEARS S/O. STEPHEN ANTONY, PARTNER TONY DANIEL HOMES, RESIDING AT 103, PARADISE TOWER, CHERANALLOOR VILLAGE, KANAYANNUR TALUK, SOUTH CHITTOOR P.O, ERNAKULAM, PIN - 682027. ``` ``` BY ADVS. V.JOHN MANI JACKSON JOHNY(K/752/2015) ``` ## **`Tr.P (C) NO. 341 OF 2022 2`** ``` VARGHESE SABU(K/778/2019) SETHULAKSHMI K.K.(K/623/2017) DIANA LAURANCE PAUL(K/1634/2020) ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`Tr.P (C) NO. 341 OF 2022 3`** **Dated this the 23[rd] day of November, 2022** ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure (in short ’Code’), seeking to transfer O.P. No.385/2022 (Annexure 1) from the Family Court, Ernakulam to the Family Court, Kannur. 2. The petitioner’s case, in brief, in the memorandum of transfer petition is that, she is the wife of the first respondent. The respondents 2 and 3 are the respondents 2 and 3 in Annexure 1 and the contractors who constructed the house of the couple. This Court by order dated 14.07.2022 in Tr.P.(C) No.177/2022 has ordered the transfer of O.P. No.203/2022 filed by the first respondent from the Family Court, Ernakulam to the Family Court, Kannur. The first respondent has already filed O.P.(G&W) No.523/2022 (Annexure 3) before the Family Court, Kannur to appoint himself as the guardian of the child born in their wedlock. The first respondent is ## **`Tr.P (C) NO. 341 OF 2022 4`** contesting Annexure 3 and the proceeding transferred by this Court before the Family Court, Kannur. Hence, no inconvenience would be caused to him if Annexure 1 being transferred. Hence, the transfer petition. 3. The first respondent has filed a counter affidavit, denying the allegations in the transfer petition. He has, inter-alia, contended that the property is situated within the jurisdiction of the Family Court, Ernakulam, only the said court has jurisdiction to entertain the original review of Section 16 of the Code of Civil Procedure. Hence, the transfer petition may be dismissed. 4. Heard; Sri.M.V. Amaresan, the learned counsel appearing for the petitioner and Sri. John Mani, the learned counsel appearing for the first respondent. Service is complete on the respondents 2 and 3. 5. On an analysis of the pleadings and materials on record, it is evident that this Court has already exercised its discretionary powers under Section 24 of the Code and ordered the transfer of O.P.No.203/2022 from the Family ## **`Tr.P (C) NO. 341 OF 2022 5`** Court, Ernakulam to the Family Court, Kannur by the order passed in Tr.P(C)No.177/2022. Moreover, the first respondent has filed Annexure 3 before the Family Court, Kannur and is contesting the said proceeding before the said court. 6. 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. 7. In the light of the law laid down in the afore- ## **`Tr.P (C) NO. 341 OF 2022 6`** cited decisions, the pleadings and materials on record and the totality of the facts and circumstances of the case, particularly the fact that this Court has already ordered the transfer of O.P.No.203/2022, and Annexure 3 filed by the first respondent is pending before the Family Court, Kannur, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code and order the transfer of Annexure 1, so that all the cases between the parties can be consolidated and jointly tried, which would save precious judicial time and avoid conflict of decisions. The power of this Court under Section 24 of the Code overrides the provision of Sections 16 to 20 of the Code. In the result, I allow the transfer petition as follows:(i) O.P No.385/2022 is transferred from the Family Court, Ernakulam to the Family Court, Kannur. (ii) The parties would be at liberty to move the Family Court, Kannur and seek for the consolidation and joint trial of all the cases between them. ## **`Tr.P (C) NO. 341 OF 2022 7`** (iii) The Registry shall forward a copy of this order to the Family Court, Ernakulam with instructions to forthwith transmit the records in Annexure 1 to the Family Court, Kannur. (iv) The Family Court, Kannur shall, immediately on the receipt of the records in Annexure 1, call the case along with O.P.(G&W) No.523/2022. **Sd/-** **C.S.DIAS, JUDGE** rmm23/11/2022 ``` Tr.P (C) NO. 341 OF 2022 8 ``` ## **`A PPENDIX OF TR.P(C) 341/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE COPY OF O.P NO. 385/2022 FILED BY THE 1ST RESPONDENT DATED 3.2.2022 BEFORE THE FAMILY COURT, ERNAKULAM. ``` ``` Annexure A1(a)TRUE COPY OF SUMMONS IN OP.385/2022 DATED 28.05.2022 ISSUED BY FAMILY COURT, ERNAKULAM TO THE PETITIONER. ``` ``` Annexure A2TRUE COPY OF ORDER IN TR. P(C) NO. 177/2022 DATED 17.03.2022 PASSED BY THIS HON'BLE COURT. ``` ``` Annexure A3TRUE COPY OF O.P(G&W) NO. 523/2022 FILED BY THE 1ST RESPONDENT BEFORE FAMILY COURT, KANNUR DATED 16.02.2022. ``` ``` Annexure A3(a)TRUE COPY OF SUMMONS IN OP(G&W) NO. 523/2022 ISSUED BY THE FAMILY COURT, KANNUR TO THE PETITIONER DATED 30.04.2022. ```