Nimi and others v. Ajith M.T.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** ## **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **Tr.P(C).No.674 OF 2019** **SEEKING TRANSFER OF OP NO.460/2019 AND G.O.P.NO.662/2019 PENDING BEFORE THE FAMILY COURT, MUVATTUPUZHA TO THE FAMILY COURT, THRISSUR** **PETITIONERS/RESPONDENT IN O.P.NO.460/2019 AND RESPONDENTS IN G.O.P.NO.662/2019:** **1 NIMI, AGED 30 YEARS D/O E.M.A JOSE, ELUVATHINKAL MUTTICKEL HOUSE, CHETTUPUZHA, PULLAZHI VILLAGE (POST), THRISSUR DISTRICT, PRESENTLY RESIDING AT KELATH SIGNATURE APARTMENTS, GROUND FLOOR, AG-1, MINALUR, ATHANI THRISSUR DISTRICT. 2 JOSE E.M.A., S/O ANTONY, ELUVATHINKAL MUTTICKEL HOUSE, CHETTUPUZHA, PULLAZHI VILLAGE (POST), THRISSUR DISTRICT, 3 FLOWER JOSE, W/O E.M.A.JOSE, ELUVATHINKAL MUTTICKEL HOUSE, CHETTUPUZHA, PULLAZHI VILLAGE (POST), THRISSUR DISTRICT,** **BY ADVS. SHRI.THAREEQ ANVER KUM.K.SALMA JENNATH** **RESPONDENT/PETITIONER IN O.P.NO.460/2019 & RESPONDENTS IN G.O.P.NO.662/2019 :** **AJITH M.T., AGED 34 YEARS S/O THOMAS, MANKUZHA HOUSE, CHELAMATTOM VILLAGE, KUNNATHU NADU TALUK, ERNAKULAM DISTRICT, POST REYON PURAM PIN-693 543.** **R1 BY ADV. SRI.BIJU ABRAHAM** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.10.2020, THE COURT ON 09.10.2020 PASSED THE FOLLOWING:** Tr.P.(C).No.674/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Tr.P.(C) No.674 of 2019 -------------------------------------------Dated this the 9[th] day of October, 2020 ## **O R D E R** The first petitioner is the wife and the respondent is the husband. The second and the third petitioners are the parents of the first petitioner. 2. The respondent has filed O.P.No.460/2019 against the first petitioner in the Family Court, Muvattupuzha for restitution of conjugal rights. The respondent has also filed O.P.(G&W) No.662/2019 against the petitioners in the same court for appointing him as guardian of the two minor children and seeking permanent custody of the children. 3. This application is filed by the petitioners to transfer the above mentioned two cases from the Family Court, Muvattupuzha to the Family Court, Thrissur. 4. Heard learned counsel for the petitioners and also the respondent. Tr.P.(C).No.674/2019 3 5. The prayer for transferring the two cases from the Family Court, Muvattupuzha to the Family Court, Thrissur is made by the petitioners on the following grounds: (1) The Family Court, Muvattupuzha has got no jurisdiction to entertain and try the case O.P.(G&W) No.662/2019 and it is a case which should have been filed before the Family Court, Thrissur. (2) The first petitioner has filed a case as M.C.No.639/2019 against the respondent under Section 125 Cr.P.C in the Family Court, Thrissur claiming maintenance for the two minor children. Consolidation of the two cases pending in the Family Court, Muvattupuzha and the case M.C.No.639/2019 pending in the Family Court, Thrissur is necessary. (3) The first petitioner and her parents are residing at Thrissur. The convenience of the wife and the children has to be given preference in matrimonial matters. 6. The contention of the petitioners that the Family Court, Muvattupuzha has got no jurisdiction to entertain and try the case O.P.(G&W) No.662/2019 is not a relevant matter for consideration in this application. If the petitioners have got a plea that the Family Court, Muvattupuzha has got no jurisdiction Tr.P.(C).No.674/2019 4 to entertain and try the aforesaid case, they have to raise that plea before that court. The solitary test for determining the jurisdiction of the court in the matter of appointment of a guardian for the person of a minor is the ordinary residence of the minor (See **Ruchi Majoo v. Sanjeev Majoo : AIR 2011 SC 1952)** . Resolution of the question of jurisdiction of the court to entertain and try the case O.P.(G&W) No.662/2019 requires consideration of disputed facts. Such an exercise has to be undertaken by the Family Court and not by this Court in the application for transfer of the case. 7. The fact that the first petitioner has instituted a case as M.C.No.639/2019 in the Family Court, Thrissur is also not a sufficient ground to transfer the other two cases pending in the Family Court, Muvattupuzha to the Family Court, Thrissur. The case M.C.No.639/2019 was filed by the first petitioner against the respondent after the institution of the other two cases by the respondent in the Family Court, Muvattupuzha. There is no merit in the contention of the petitioners that consolidation of the case M.C.No.639/2019 with the other two cases and trial of all the Tr.P.(C).No.674/2019 5 cases by the same court are required to avoid contradictory findings by different courts in the three cases. The case M.C.No.639/2019 is filed under Section 125 Cr.P.C seeking maintenance for the two minor children. If at all consolidation of the case filed under Section 125 Cr.P.C with the two other cases is possible and desirable, it does not mean that the two cases pending in the Family Court, Muvattupuzha have to be transferred to the Family Court, Thrissur. The purpose can also be achieved by transferring the case M.C.No.639/2019 to the Family Court, Muvattupuzha. 8. Generally, in applications for transfer of cases relating to matrimonial matters, the convenience of the wife has to be given preference. Financial constraints of the wife and the difficulties being experienced by the wife to undertake a long journey to attend the court at a distant place are also factors to be taken into consideration in her favour. 9. However, in the instant case, preference has to be given to the convenience and welfare of the children. Learned counsel for the respondent submitted that, at present, the Tr.P.(C).No.674/2019 6 children are in the custody of the respondent and they are living with him and his parents at his house which is within the jurisdiction of the Family Court, Muvattupuzha. Learned counsel for the petitioners did not dispute the correctness of the aforesaid submission. It is stated in the transfer application that the elder child is residing in a school in Thrissur. The petitioners have not produced any material or document to prove that the elder child is residing in any school in Thrissur. The averments in the transfer application filed by the petitioners and the counter affidavit filed by the respondent reveal the state of affairs which existed nearly an year ago and not the present state of affairs. 10. The first petitioner and the respondent are doctors by profession. The first petitioner, though a doctor, is undergoing the post graduate course. She is staying separately from her parents in an apartment in Thrissur for the purpose of her studies. On the other hand, the respondent is practising as a doctor. Transfer of the cases from the Family Court, Muvattupuzha to the Family Court, Thrissur would cause considerable hardship to the respondent and also to the children Tr.P.(C).No.674/2019 7 staying with him. 11. At this juncture, it is also to be noted that the respondent had filed O.P.(FC) Nos.309/2020 and 323/2020 before this Court for speedy disposal of the cases O.P.No.460/2019 and O.P.(G&W) No.662/2019 pending before the Family Court, Muvattupuzha. As per the judgments dated 11.09.2020 and 18.09.2020, a Division Bench of this Court has allowed the prayer made by the respondent and a direction has been issued to the Family Court, Muvattupuzha to dispose of the aforesaid two cases as expeditiously as possible, at any rate, within a period of six months. It is true that, if the aforesaid two cases are ordered to be transferred to the Family Court, Thrissur, the direction given by this Court for speedy disposal of the cases would be binding upon the transferee court also. However, transfer of the two cases now to the Family Court, Thrissur would invariably cause delay in the disposal of the two cases. 12. In the aforesaid circumstances, I find that the prayer for transferring the two cases mentioned above from the Family Court, Muvattupuzha to the Family Court, Thrissur cannot be Tr.P.(C).No.674/2019 8 allowed. However, if the petitioners could produce necessary materials to show that the children are staying with the first petitioner and that the elder child is studying in any school or kindergarten in Thrissur, in the interests of the welfare of the children, the petitioners can be given liberty to file fresh application for transfer of the cases. `13. Consequently, the petition is dismissed. However, the petitioners are at liberty to file fresh application for transfer of the cases to the appropriate court on producing necessary materials/documents to show that the children are staying with the first petitioner and that the elder child is studying in any school or kindergarten in Thrissur. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr Tr.P.(C).No.674/2019 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE PETITION IN OP NO 460/2019 DATED 24.6.2019 PENDING BEFORE THE MUVATTUPUZHA FAMILY COURT** **ANNEXURE 11 TRUE COPY OF THE PETITION IN GOP 622/2019 DATED 16.9.2019 PENDING BEFORE THE MUVATTUPUZHA FAMILY COURT** **ANNEXURE 111 TRUE COPY OF THE PETITION IN MC 639/2019 DATED 21.10.2019 PENDING BEFORE THE THRISSUR FAMILY COURT** ## **RESPONDENT'S EXHIBITS : NIL** True Copy PS to Judge