High Court of KeralaSingle Judge2023-09-29Transfer petition disposed of with directions: ...

Niju J @ Neju Joseph (Johnson) v. Sosamma and Smt. Swapna Vijayan

Case / Petition Number:Tr.P.C. No.762 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2023-09-29
Court Decision / Holding: (i) Annexure-A1 transfer is declined. (ii) Annexure-A2 transfer from the Family Court, Chavara to the Family Court, Kollam is allowed. (iii) Annexure-A2 is withdrawn from Chavara and transferred to Kollam. (iv) The Family Court, Chavara to transmit records in OP 91/2021 to Kollam. (v) Kollam to post the case along with Annexure-A1. (vi) Parties may move for consolidation and joint trial. (vii) Registrar to forward copies to Chavara for compliance.
Final Disposition: Transfer petition disposed of with directions: Annexure-A1 transfer declined; Annexure-A2 transfer from Chavara to Kollam allowed; records to be transmitted; consolidation possible; registrar to issue copies to Chavara.

Parties to the Case

Appellants / Petitioners

NIJU J @ NEJU JOSEPH (JOHNSON)

Respondents

SOSAMMA
SMT. SWAPNA VIJAYAN

Legal Representation & Advocates

Counsels for Petitioners

• Adv. M R SARIN

Counsels for Respondents

• Smt. Swapna Vijayan

Case Synopsis & Summary

This is a Transfer Petition (Civil) under Section 24 CPC filed in the Kerala High Court by Niju J @ Neju Joseph (the husband) seeking transfer of OP No. 607/2021 (money decree filed by Sosamma in the Family Court, Kollam) to the Family Court, Chavara. The petitioner (represented by his power of attorney holder, a senior citizen) argues that defending Annexure-A1 from Kollam would be impracticable due to the POA holder’s health and travel burdens, and that the related divorce proceedings OP 91/2021 filed by him in Chavara should be consolidated with the Kollam matter. The respondent Sosamma and her counsel contend that the governing principle in matrimonial transfers is the convenience of the wife and children, a view reinforced by binding Supreme Court and Kerala cases cited in the judgment. While the petitioner later sought transfer of Annexure-A2 (OP 91/2021) to Kollam to consolidate, the court ultimately held that Annexure-A1 transfer could not be ordered, but allowed Annexure-A2’s transfer to Kollam. The order directs transmission of records, consolidation procedures, and leaves open the possibility of joint trial, emphasizing avoidance of multiplicity of proceedings. The bench, presided by Justice C. S. Dias, clarifies the evolving law on transfer of matrimonial disputes and upholds weight to the respondent’s convenience.

Provisions of Law Cited

Section 24 of the Code of Civil Procedure (CPC)

Legal Doctrines & Maxims

Convenience of the wife and children as the guiding principle in transfer of matrimonial disputes.
Power of attorney convenience cannot be grounds for transfer (Mini Antony v. Savio Aruja).
Matrimonial transfer decisions should avoid multiplicity of proceedings and seek consolidated adjudication.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Annexure-A1 (OP 607/2021) is pending in the Kollam Family Court and that his power of attorney holder, a senior citizen, would face substantial hardship travelling from Thekkumbhagōm to Kollam to defend Annexure-A1. He submits that Annexure-A2 (OP 91/2021) is filed in Chavara and seeks consolidation to avoid multiplicity of proceedings and to obtain a single, coherent judgment. He argues that transfer to Kollam would facilitate fair, cost-effective adjudication and quicker resolution, given his overseas employment and the health of the POA holder.

Contentions of Respondents

The respondents rely on established jurisprudence emphasizing the convenience of the wife and children as the primary criterion for transferring matrimonial disputes. They contend that transferring proceedings would undermine the wife’s and children’s convenience and that the court should not rely on the convenience of the petitioner's POA holder. They also rely on previous Kerala High Court and Supreme Court decisions to justify prioritizing the respondent’s circumstances over the petitioner’s travel difficulties.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Sumitha Sing V. Kumar Sanjay and another	[2002 KHC 1889]	Positive	Cited to support the principle that the convenience of the woman and children must guide the transfer of matrimonial disputes.
Mona Aresh Goel V. Aresh Satya Goel	[2000 KHC 1835]	Positive	Cited as authority for the governing law on transfer and the weight given to convenience factors in matrimonial disputes.
Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap	[2016 KHC 6489]	Positive	Used to reinforce prioritization of the respondent’s convenience (wife/children) in transfer decisions.
Santhini Venkatesh V. Vijaya Venkatesh	[2017 (5) KHC 48]	Positive	Supports the settled approach that the convenience of the woman and children should guide transfer orders.
Mini Antony v. Savio Aruja	[2022 (3) KHC 42]	Positive	Held that convenience of the power of attorney holder cannot be ground for transfer; cited to reject POA-ground in the present petition.

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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 ``` ``` FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 ``` ## `TR.P(C) NO. 762 OF 2021` ``` AGAINST THE JUDGMENT IN OP 607/2021 OF FAMILY COURT, KOLLAM ``` ## `PETITIONER/RESPONDENT:` ``` NIJU J @ NEJU JOSEPH (JOHNSON) AGED 45 YEARS S/O. JOSEPH, RESIDING AT NIJU LAND, KOIVILA P.O, THEKKUMBHAGOM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM - 691583, (NIKHIL DALE, CONVENT NAGAR -21, THEKKUMBHAGOM, ERAVIPURAM MUNDAKKAL VILLAGE, KOLLAM), REPRESENTED BY POWER OF ATTORNEY HOLDER, JOSEPH, AGED 70 YEARS, S/O. KASMEL, RESIDING AT MOTTAKKAVILAYAIL, KOIVILA P.O, THEKKUMBHAGOM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM - 691583. BY ADV SRI.M R SARIN ``` ``` RESPONDENT/PETITIONER: ``` ``` SOSAMMA AGED 42 YEARS D/O. NIRMALA, RESIDING AT NIJU DALE (SONA DALE), CONVENT NAGAR - 21, THEKKUMBHAGOM, ERAVIPURAM, MUNDAKKAL VILLAGE, KOLLAM – 690 573 SMT.SWAPNA VIJAYAN ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 29.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.C. No.762 of 2021 ``` ``` 2 ``` ## C. S. DIAS, J. ``` ------------------------- ``` ## Tr.P.C. No.762 of 2021 `-------------------------` Dated this the 29[th] day of September, 2023 ## ORDER The transfer petition is filed under Section 24 of the Code of Civil Procedure (in short, ‘CPC’) to transfer O.P. No.607/2021 (Annexure-A1) from the Family Court, Kollam to Family Court, Chavara. 2. The petitioner’s case, in brief in the memorandum of transfer petition is that, he is the husband of the respondent. The respondent has filed Annexure-A1 before the Family Court, Kollam, for a decree for realisation of money and gold ornaments. The petitioner has filed O.P. (Div.) No.91/2021 (Annexure-A2) before the Family Court, Chavara, against the respondent seeking a decree of divorce. The petitioner is ``` Tr.P.C. No.762 of 2021 ``` ``` 3 ``` prosecuting Annexures A1 and A2 through his power of attorney holder, a senior citizen, who is suffering from various ailments. It would be difficult for the power of attorney holder to travel from Chavara to Kollam to defend Annexure-A1. Hence, the transfer petition may be allowed. 3. Heard; Sri.M.R.Sarin, the the learned counsel appearing for the petitioner and Smt.Swapna Vijayan, the learned counsel appearing for the respondent. 4. The law with respect to the transfer of proceedings, particularly matrimonial dispute 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] and Santhini V. Vijaya ``` Tr.P.C. No.762 of 2021 ``` ``` 4 ``` Venkatesh [2017 (5) KHC 48] . The Hon’ble Supreme Court has held that it is the convenience of the woman and children that has to be considered and given due preference, while ordering the transfer of a case from one Court to another. 5. Undisputedly, it was the respondent who first filed Annexure-A1 before the Family Court, Kollam, on 15.04.2021. It is thereafter that the petitioner filed Annexure-A2 before the Family Court, Chavara. 6. The petitioner seeks for transfer of Annexure-A1 from the Family Court, Kollam to Family Court, Chavara, cardinally on the ground that it would cause inconvenience to his power of attorney holder, who is a senior citizen and suffering from various ailments, who would have to travel 50 kms to and fro from Chavara ``` Tr.P.C. No.762 of 2021 ``` ``` 5 ``` to contest Annexure-A1 before the Family Court, Kollam. 7. In Mini Antony v. Savio Aruja [2022 (3) KHC 42] , this Court has held that the convenience of the power of attorney holder of a party cannot be taken as a ground to transfer a proceeding under Section 24 CPC. 8. Indisputably, the petitioner is employed abroad and the respondent is 42 year old lady. In the light of the law referred to above, it is the respondent’s convenience that has to be given due preference and weightage. Therefore, I am not inclined to order the transfer of AnnexureA1 from the Family Court, Kollam to the Family Court, Chavara. 9. At the said point of time, the learned counsel appearing for the petitioner submitted that, the petitioner would be satisfied if this ``` Tr.P.C. No.762 of 2021 ``` ``` 6 ``` Court orders the transfer of Annexure-A2 from the Family Court, Chavara to the Family Court, Kollam, so that the two cases can be consolidated and jointly tried by the same Court and be decided by a common judgment, which would avoid multiplicity of proceedings and conflict of the judgments. 10. Taking into account the submission made across the Bar, notwithstanding the absence of such a prayer, I am inclined to accede to the present request made by the learned counsel for the petitioner, which in turn is not opposed by the learned counsel for the respondent. Accordingly, to meet the ends of justice, I invoke the discretionary powers of this Court under Section 24 CPC and order the transfer of Annexure-A2 from the Family Court, Chavara to the Family Court, Kollam. ``` Tr.P.C. No.762 of 2021 ``` ``` 7 ``` Resultantly, the transfer petition is disposed of in the following manner: (i) The petitioner’s request for transfer of Annexure-A1 is declined; (ii) The petitioner’s oral request for transfer of Annexure-A2 from the Family Court, Chavara to the Family Court, Kollam is allowed; (iii) Annexure-A2 is withdrawn from the Family Court, Chavara and transferred to the Family Court, Kollam. (iv) The Family Court, Chavara is directed to forthwith transmit the records in O.P.(Div.) No.91/2021 to Family Court, Kollam; (v) The Family Court, Kollam shall immediately on receipt of the records in Annexure-A2, post the case along with Annexure-A1; (vi) The parties would be at liberty to move ``` Tr.P.C. No.762 of 2021 ``` ``` 8 ``` the Family Court, Kollam and seek the consolidation and trial of the cases joint between them. (vii) The Registry is directed to forward a copy of this order to the Family Court, Chavara for due compliance. Sd/- C. S. DIAS JUDGE SKP/29-09 ``` Tr.P.C. No.762 of 2021 ``` ``` 9 ``` ## `APPENDIX OF TR.P(C) 762/2021` ``` PETITIONER’S ANNEXURES: ANNEXURE A1THE TRUE COPY OF THE OP NO. 607/2021 PENDING BEFORE THE FAMILY COURT, KOLLAM. ANNEXURE A2THE TRUE COPY OF THE OP 91/2021 ON THE FILE OF THE FAMILY COURT, CHAVARA. RESPONDENTS' EXHIBITS:NIL ``` ``` TRUE COPY ``` ``` P.A. TO JUDGE ```