P. V. Neethumol and Niya Maria Jinson v. Jinson Lazar and others

**TR.P(C) NO.292 OF 2022** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944** ## **TR.P(C) NO. 292 OF 2022** ## **AGAINST OP No.113/2022 OF FAMILY COURT, THODUPUZHA** ## **PETITIONERS/PETITIONERS:** 1 P. V. NEETHUMOL AGED 30 YEARS W/O JINSON LAZAR, KUTTIPARAMBIL HOUSE NO.377, KARIMANNUR VILLAGE, VANDAMATTOM .P .O, THODUPUZHA, PIN 685582, NOW RESIDING AT PUTHUSERILL HOUSE, NEAR S N COLLEGE THOTTADA, KANNUR - 670 007. 2 NIYA MARIA JINSON AGE 4 1/2 YEARS REPRESENTED BY THE FIRST PETITIONER HER MOTHER AS GUARDIAN P.V.NEETHUMOL, AGED 30 YEARS, W/O JINSON LAZAR, KUTTIPARAMBIL HOUSE NO.377, KARIMANNUR VILLAGE, VANDAMATTOM P. O., THODUPUZHA, PIN 685582, NOW RESIDING AT PUTHUSERILL HOUSE, NEAR S N COLLEGE THOTTADA, KANNUR - 670 007. BY ADVS.S.JAMES VINCENT R.GOPAN ## **RESPONDENTS/RESPONDENTS:** 1 JINSON LAZAR AGED 35 YEARS S/O. LAZAR, KUTTOPARAMBIL VEEDU, KARIMANNUR VILLAGE, VANDAMATTOM P. O., THODUPUZHA, PIN - 685582. 2 LAZAR, AGED 67 YEARS RESIDING AT KUTTOPARAMBIL VEEDU, KARIMANNUR VILLAGE, VANDAMATTOM P. O., THODUPUZHA, PIN 685582. 3 SHOBHANA, AGED 67 YEARS W/O LAZAR, RESIDING AT KUTTOPARAMBIL VEEDU, KARIMANNUR VILLAGE, VANDAMATTOM P. O., THODUPUZHA, PIN 685582. BY ADVS. DENNY VARGHESE PRINCE J PANANAL(K/001256/2002) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON 23.8.2022 DELIVERED THE FOLLOWING: **TR.P(C) NO.292 OF 2022** **2** ## **C.S DIAS,J.** **--------------------------Tr.P (C) No.292 of 2022 ----------------------------Dated this the 23[rd] August, 2022.** ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, to transfer O.P No.113/2022 (AnnexureA1) from the Family Court, Thodupuzha to the Family Court, Kannur. 2. The concise case of the petitioners, in the memorandum of transfer petition, is that: the 1[st] petitioner is the wife of the 1[st] respondent. The 2[nd] petitioner is the daughter born in their wedlock. The respondents 2 and 3 are the parents of the 1[st] respondent. Right from the inception of the marriage, the respondents used to mentally and physically harass the 1[st] petitioner. The 1[st] petitioner was constrained to file M.C No.3/2022 before the Judicial First Class Magistrate Court, Thodpuzha, as against the respondents, invoking the **TR.P(C) NO.292 OF 2022** **3** provisions of the Protection of Women from the Domestic Violence Act, 2005. A protection order was passed in favour of the petitioners, restraining the respondents from committing any act of physical, mental, verbal or emotional abuse and evicting them from the shared household. Thereafter, the 1[st] petitioner filed Annexure-A1 before the Family Court, Thodupuzha, against the respondents, inter alia, to declare that she has a right over the petition 'A & B' schedule properties, the matrimonial home. The 2[nd] respondent, in violation of the protection order passed by the learned Magistrate, physically abused the 1[st] petitioner. The 1[st] petitioner lodged a complaint against the respondents before the Karimannoor Police and Crime No.78/2022 was registered. Now, the petitioners are residing with the 1[st] petitioner's mother in Kannur. The petitioners are depending on the meager income of the 1[st] petitioner’s mother, who is suffering from several diseases. The 2[nd] petitioner is aged 4½ years. She has to take admission in a school for **TR.P(C) NO.292 OF 2022** ## **4** her studies. Even though the petitioners have filed an application for interim maintenance, the application has not been considered. Hence, Annexure-A1 may be transferred from the Family Court, Thodupuzha to the Family Court, Kannur. 3. The respondents have filed a counter affidavit denying the allegations in the transfer petition. They have, inter alia, contended that, the respondents 2 and 3 are senior citizens and are suffering from geriatric diseases. There is no valid ground to transfer Annexure-1. The 1[st] petitioner has filed four applications in Annexure-A1 before the Family Court, Thodupuzha, seeking various reliefs. The respondents have not violated the protection order passed by the learned Magistrate. In fact, the 1[st] petitioner assaulted the 2[nd] respondent and CMP 1088/2022 has been filed against the 1[st] petitioner before the Judicial First Class Magistrate Court-I, Thodupuzha, for the offences punishable under Sections 323, 324 and 379 of the Indian Penal Code. The 1[st] petitioner has filed **TR.P(C) NO.292 OF 2022** **5** I.A 5/2022 in Annexure-A1, to secure the vacant possession of the residential building where the respondents are residing or to provide her an alternative accommodation at Thodupuzha. The 1[st] petitioner had initially stated that she was residing at Maria Bambina Ladies Home in Thodupuzha, on a monthly rent of Rs.5,000/-. Later, she has alleged that she is residing in an apartment by paying a monthly rent of Rs.15,000/-. In Annexure-A3 FIR lodged by the 1[st] petitioner, she has alleged that she is working in IMA, Thodupuzha. All the above facts establish that the 1[st] petitioner is permanently residing in Thodupuzha. The allegation that the petitioners are residing in Kannur is false. The petitioners have not produced any material to substantiate their address in Kannur. If at all she is residing at Kannur, it is only a temporary residence. This Court in **Silpa Shaji v. Satheesh and others** [2022 (1)KHC 691] has held that a mere temporary residence is not a ground for transfer. The transfer petition is filed only to harass the respondents. If the transfer petition is **TR.P(C) NO.292 OF 2022** **6** allowed, it would cause severe difficulties and hardship to the respondents, particularly the respondents 2 and 3, who are old and infirm. Hence, the transfer petition may be dismissed. 4. The 1st petitioner has filed a reply affidavit to the counter affidavit. She has alleged that, on 3.2.2022, the 1[st] respondent and his brother took away the child. Then, the 1[st] petitioner’s mother came down from Kannur and they jointly went to Police Station and lodged a complaint. Thereafter, the respondents have objected to the continued residence of the 1[st] petitioner and her mother in the matrimonial home. After the 1[st] petitioner’s mother left, the 1[st] petitioner sought shelter in a ladies hostel. The judgment relied on by the respondents in **Silpa Shaji** (supra) is without jurisprudential basis or precedented reference, as this Court has not relied on various decisions rendered by the Hon’ble Supreme Court over the last 25 years. Hence the transfer petition may be allowed. **TR.P(C) NO.292 OF 2022** **7** 5. When the transfer petition came up for consideration on 29.7.2022, this Court had directed the petitioners to produce material to substantiate that the petitioners are presently residing in Kannur. 6. On 17.8.2022, the petitioners have produced Annexures A6 to A10. Annexure-A6 is the experience certificate dated 31.5.2022 issued by the Indian Medical Association, which shows that the 1[st] petitioner was employed in the above institution from 20.10.2021 to 31.5.2022. Annexures A7, A8 and A10 are train tickets. Annexure-A9 is a letter dated 5.8.2022 issued by the Principal of St.Francis Nursery School, Kannur, certifying that the 2[nd] petitioner is a bonafide student of the said institution w.e.f 13.5.2022. 7. Heard; Sri.S.James Vincent, the learned counsel appearing for the petitioners and Sri.Denny Varghese, the learned counsel appearing for the respondents. 8. Sri.S.James Vincent, reiterated the contention of the petitioners in the transfer petition and in the reply **TR.P(C) NO.292 OF 2022** **8** affidavit. He placed reliance on the decisions of the Hon’ble Supreme Court in **Jaishree Banerjee v. Abhirup Banerjee** [(1997) 11 SCC 107] and **Jagir Kaur and another v. Jaswant Singh** [AIR 1963 SC 1521], to canvass the position that there is no necessity for a person to have permanent residence at a particular place, to seek transfer of a case. It is sufficient to plead and establish that the residence is something more than a flying visit or casual stay at a particular place. He submitted that the pleadings and materials on record substantiate that the petitioners are now presently residing in Kannur, which entitles them for an order of transfer. 9. Sri. Denny Varghese vehementally opposed the above submissions. He reiterated the contentions of the respondents in the counter affidavit. He placed reliance on the decision of the Division Bench of this Court in **Vidya Mundekkat v. Akhilesh Jayaram** [(2021 (6) KHC 506) and argued that there is no invariable rule that whenever a woman approaches this Court and points out **TR.P(C) NO.292 OF 2022** ## **9** an inconvenience, this Court is obliged to exercise the discretionary powers under Section 24 of the Code of Civil Procedure. He also placed reliance on the decision of this Court in **Silpa Shaji (** supra), to contend that a mere temporary residence is insufficient to order the transfer of a case from one court to another. He argued that the transfer petition may be dismissed. 10. The point is whether O.P No.113/2022 is to be transferred from the Family Court, Thodupuzha, to the Family Court, Kannur. 11. It was the petitioners who have filed O.P 113/2022 before the Family Court, Thodupuzha, against the respondents, seeking various reliefs, including a declaratory relief that the 1[st] petitioner has a right over the petition 'A&B' schedule properties. The address of the petitioners in the original petition is in Thodupuzha, which is the same address as that of the respondents- the matrimonial home. 12. It is on record that the 1[st] petitioner has filed **TR.P(C) NO.292 OF 2022** **10** M.C No.3/2022 before the Judicial First Class Magistrate Court, Thodupuzha, against the respondents, under the Protection of Women from Domestic Violence Act, and Annexure-A2 protection order has been passed in favour of the petitioners, permitting them to reside in the shared household. The Station House Officer, Karimannur Police Station has been directed to render necessary police protection to the petitioners. 13. The petitioners have alleged, subsequent to Annexure-A2, the respondents have violated the said order. Consequently, the 1[st] petitioner has lodged a complaint with the Police which has led to the registration of Annexure-A3 F.I.R. Hence, the petitioners were compelled to leave the matrimonial home/shared household and seek shelter in the 1[st] petitioner's mother house in Kannur. Thus, the petitioners seek for the transfer of Annexure-A1. 14. On the contrary, the respondents have denied the allegations in the transfer petition and have alleged that the 1[st] petitioner has already sought for an alternative **TR.P(C) NO.292 OF 2022** **11** accommodation in Thodupuzha; that she was residing in Maria Bambina Ladies Hostel and, thereafter, she was residing in an apartment on a monthly rent of Rs.15,000/-. In Annexure-A3, the 1[st] petitioner has stated that she is working in I.M.A, Thodupuzha, and she has sought for a residence order at the 3[rd] respondent's house in Thodupuzha. 15. On an analysis of the pleadings and materials on record, it is evident that it is the petitioners who preferred Annexure-A1 before the Family Court, Thodupuzha, Annexure-A2 before the jurisdictional Magistrate at Thodupuzha and Annexure-A3 before the jurisdictional Police at Thodupuzha. 16. Even though this Court had directed the petitioners to produce material to substantiate that the petitioners residence in Kannur, the petitioners have only produced Annexure-A9 certificate dated 5.8.2022 issued in favour of the 2[nd] petitioner certifying that she is a bona fide student in a school in Kannur w.e.f 13.5.2022.Hence, **TR.P(C) NO.292 OF 2022** **12** undoubtedly, it is just prior to the filing of the transfer petition, that the petitioners have shifted to Kannur. 17. A Division Bench of this Court in **Vidhya Mundekkat** (supra), has categorically held that there is no invariable rule that, whenever a wife makes a request pointing her inconvenience, the Court is obliged to exercise the powers under Section 24 of the Code of Civil Procedure and order the transfer of a case. Likewise, in **Silpa Shaji** (supra), this Court has held that a mere temporary stay for some reason or the other cannot be a ground for transferring a case from one court to another. 18. Undisputedly, M.C. No.3/2022 and Annexure A3 F.I.R filed by the 1[st] petitioner are pending before the jurisdictional Magistrate and the jurisdictional Police at Thodupuzha. The 1[st] petitioner has not sought for the transfer of M.C No.3/2022. Therefore, necessarily, she would have to appear before the said court to prosecute the proceeding. Furthermore, it is seen that the petitioners have been granted Annexure-A2 protection and residence **TR.P(C) NO.292 OF 2022** **13** order to reside in the shared household. The 1[st] petitioner has not moved the learned Magistrate alleging that the respondents have violated Annexure-A2; instead, she has lodged Annexure-A3 before the Police. The 1[st] petitioner has sought for an alternative residence in Thodupuzha and has admitted to have resided in different places in Thodupuzha. She was unable to prove her residence in Kannur. 19. On the contrary, the respondents 2 and 3 are both aged 67 years and they are parties in all cases. Also, the property that is involved in O.P. 113/2022 is within the territorial jurisdiction of the Family Court, Thodupuzha. 20. All the above stated factors dissuade me from exercising the discretionary powers of this Court under Section 24 of the Code of Civil Procedure, and order the transfer of O.P.113/2022 from the Family Court, Thodupuzha, to the Family Court, Kannur, for the mere reason that the petitioners have now shifted their residence from Thodupuzha to Kannur. Thus, granting the **TR.P(C) NO.292 OF 2022** **14** petitioners the right to move the Family Court, Thodupuzha and seek for dispensation of their personal appearance, the transfer petition is dismissed. **Sd/-** ma/19.8.2022 **C.S.DIAS JUDGE** **TR.P(C) NO.292 OF 2022** **15** ## **APPENDIX OF TR.P(C) 292/2022** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE O.P. NO. 113/2022 OF FAMILY COURT, THODUPUZHA DATED 7.3.2022. Annexure 2 TRUE COPY OF THE ORDER DATED 12.1.2022 IN CMP NO. 176/2022 IN M.C. NO. 3/2022 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THODUPUZHA. Annexure 3 TRUE COPY OF THE FIR DATED 24.3.2022 IN CRIME NO. 78/2022 OF THE KARIMANNOOR POLICE STATION, IDUKKI DISTRICT. RESPONDENT ANNEXURES Annexure R1(a) True copy of IA No. 5/2022 in OP No. 113/2022 filed before the Hon'ble Family Court, Thodupuzha Annexure R1(b) True copy of M.C. No 3/2022 filed before the Judicial First Class Magistrate Court, Thodupuzha