Manju A v. Mohanan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945** **TR.P(C) NO. 115 OF 2023** **AGAINST THE ORDER/JUDGMENT OP 639/2022 OF FAMILY COURT, KALPETTA** ## **PETITIONER/RESPONDENT:** MANJU A AGED 38 YEARS D/O KP.,APPUKUTTAN ACHARI, KARIKKAMTHARAYIL HOUSE, UNDANPLAVU, MATHIL BHAGAM, THIRUVALLA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689110 BY ADV K.N.RADHAKRISHNAN(THIRUVALLA) ## **RESPONDENT/PETITIONER:** MOHANAN AGED 51 YEARS S/O AYYAPPAN ACHARI, EDAKUDI HOUSE, MEENANGADIP.O., PURAKADI VILLAGE, S. BHTHERY TALUK, WAYANADU DISTRICT, PIN - 673591 BY ADVS. Sudhish M.MANJU(K/003562/1999) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Tr.P.(C).NO.115 of 2023** **==> picture [37 x 9] intentionally omitted <==** ## **O R D E R** ## _**Dated this the 10[th] day of January, 2024**_ **The petitioner herein is the respondent in O.P. No.639/2022 of the Family court, Kalpatta. The petitioner seeks transfer of the said Original Petition to the Family Court, Thiruvalla, on the ground of her convenience, since she is residing within the limits of the Family Court, Thiruvalla.** **2. Heard the learned counsel appearing for the petitioner and the respondent.** **3. Learned counsel for the petitioner submits that the petitioner has to travel almost 350 kilometers to attend the proceedings at the Family Court, Kalpatta, whereas, the Family** **Tr.P.(C).NO.115 of 2023** **==> picture [37 x 9] intentionally omitted <==** **court, Thiruvalla is only 5 kilometers away from her permanent place of residence. According to the learned counsel, the convenience of the wife is one important matter to be taken into account, while fixing the forum for adjudication of matrimonial disputes. Learned counsel also pointed out that, the petitioner's mother and father are both aged, besides the mother suffering from a stroke. It was urged that the petitioner has no income and that no amount, whatsoever, is being paid by the respondent/husband towards maintenance.** **3. The above submissions, as also, the relief sought for in the Transfer Petition are seriously disputed by the learned counsel for the respondent/husband. It was pointed out that, two girl children, who are studying in the 11[th] and 9[th] standard respectively, are with the respondent and that both his parents are no more. The** **Tr.P.(C).NO.115 of 2023** **==> picture [37 x 9] intentionally omitted <==** **nearest relative available is the brother of the respondent's father, who is residing at Wayanad. It was pointed out the respondent/husband is residing in a landed property having an extent of 50 cents, where there is no house nearby. According to the learned counsel, there is nobody to take care of his children, in case he is to attend the Family Court at Thiruvalla. It was also pointed out that the respondent/husband is a diabetic patient, which renders it difficult for him to travel. Finally, it was pointed out that, the Original Petition sought to be transferred is one for divorce on the ground of adultery and the witnesses in proof whereof, are persons from Wayanad. In such circumstances, it will be difficult for the respondent to prove the charge against the petitioner, since it would be difficult for the witnesses to attend the Court at Family Court, Thiruvalla. Learned counsel for the respondent relied upon a bench decision of** **Tr.P.(C).NO.115 of 2023** **==> picture [37 x 9] intentionally omitted <==** **the of this Court in** _**Vidhya Mundekkat v. Akhilesh Jayaram [2021 (6) KHC 506],**_ **to point out that the convenience of the wife is not always the paramount consideration, while considering a Transfer Petition preferred by the wife and the same has to be decided on the basis of the individual facts.** **4. Having heard the learned counsel appearing on both sides, this Court is inclined to allow the instant transfer petition sought for. This Court notice that it is not an inviolable rule that the convenience of the wife shall be the paramount consideration, while considering a transfer motion being made by the wife in a matrimonial mater. In the instant case, the Family Court, Kalpatta, is about 350 kilometers away from Thiruvalla and the petitioner/wife will have to travel the above distance to attend the court at Kalpatta. It is her contention that she** **Tr.P.(C).NO.115 of 2023** **==> picture [37 x 9] intentionally omitted <==** **has no income and that no amount, whatsoever, is being paid to her, by the respondent/husband towards maintenance. Her parents are aged and her mother is suffering from a stroke, is the further contention. As against the above inconvenience of the petitioner/wife, what is espoused by the respondent/husband, as a ground to refuse the transfer sought for, is that there is none to take care of the two girl children, if the respondent has to attend the Family Court at Thiruvalla. This Court is not persuaded to refuse transfer on that count, for the reason that the presence of the respondent/husband is not indicated on every posting. The respondent need only be present on those postings, where his presence is absolutely inevitable,to which effect this court propose to pass a direction.** **5. Another ground espoused by the petitioner is that the witnesses, to prove the ground of** **Tr.P.(C).NO.115 of 2023** **==> picture [37 x 9] intentionally omitted <==** **adultery, is from Wayanad, who may not available to tender evidence, if the trial takes place at Thiruvalla. Here also, this Court is not in a position to accept the respondent's contention, since, the witnesses are liable to attend the court, once summons is issued; and in case they choose not to do so, there are ample legal provisions to deal with the situation. Now, coming to** _**Vidhya Mundekkat**_ **(supra), this Court notice that, it was a case wherein the permanent residence of the petitioner/wife was at Kozhikode and that she sought for transfer, only for the reason that she has shifted her residence to Karunagapally. It was in such circumstance, that the learned Single judge dismissed the transfer sought for, which was confirmed by the Division Bench. In paragraph 10 of the said judgment, the Division Bench held that each case has to be considered and decided on the facts of that case and that no general principle of law that the** **Tr.P.(C).NO.115 of 2023** **==> picture [37 x 9] intentionally omitted <==** **convenience of the wife is always the paramount consideration is laid down by the Hon'ble Supreme Court. There is no quarrel with respect to that opposition. Of course, the convenience of the wife is not the paramount or sole consideration and it is not an inviolable rule that transfer motions, should necessarily be guided by the convenience of the wife. However, the Hon'ble Supreme Court, in a catena of decisions including the one in** _**N.C.V.Aishwarya v. A.S.Saravana Karthik Sha**_ **[AIR 2022 SC 4318], held that the convenience of the wife is certainly one among the factors to be taken into consideration, while considering the transfer motion made by the wife in matrimonial matters.** **4. In these circumstances, this Transfer Petition is allowed. There will be a direction to transfer of O.P. No.639/2022 pending before the Family Court, Kalpatta, to the Family Court,** **Tr.P.(C).NO.115 of 2023** **==> picture [37 x 9] intentionally omitted <==** **Thiruvalla. The transferor Court shall transmit the entire records to the transferee Court, forthwith. In view of the grievance espoused by the learned counsel for the respondent, it is directed that the presence of the respondent shall not be insisted upon by the Family Court, Thiruvalla, except on those occasions, were his presence is inevitable for the progress of the proceedings.** **This Transfer Petition is disposed of as above.** Sd/- **C. JAYACHANDRAN JUDGE** **TR** **Tr.P.(C).NO.115 of 2023** ..10.. ## **APPENDIX OF TR.P(C) 115/2023** PETITIONER ANNEXURES Annexure 1 THE COPY OF O.P 639 OF 2022 OF FAMILY COURT, KALPATTA DATED 22.09.2022 RESPONDENT ANNEXURES Annexure R1(b) death certificate of the respondent's Mother K.S. Lakshmi dated 30.07.2009 Annexure R1(a) copy of the death certificate of the respondent's father E.V. Ayyappan Achari dated 26.10.2002 Annexure R1(c) copy of the death certificate of my brother's wife K.T. Radhamani dated 10.3.2022