P.K. Sreekumari v. Arul P. Sugathan

1 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 ``` ## **`TR.P(C) NO. 448 OF 2020`** ## **`TO TRANSFER OP 492/2020 OF FAMILY COURT, KOTTAYAM`** ## **`PETITIONER/S:`** ``` P.K.SREEKUMARI AGED 40 YEARS D/O LATE KRISHNANUNNI, RESIDING AT PARAMPAN HOUSE, THYAMKULANGARA DESAM, CHERPPU P.O.THIRSSUR TALUK, THRISSUR DISTRICT-680 561. BY ADVS. SRI.C.V.MANUVILSAN SRI.K.RAJAN (MUHAMMA) SMT.SHEEBA G SRI.O.A.ANJU SHRI.SARATH KRISHNAN T. ``` ## **`RESPONDENT/S:`** ``` ARUL P. SUGATHAN AGED 40 YEARS S/O SUGATHAN, RESIDING AT VAISHNAVAM, NATTAKOM VILLAGE, KOTTAYAM TALUK, NATTAKOM P.O.KOTTAYAM- 686 013 REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN SUGATHAN, S/O LATE T.M.PRABHA AGED 73 YEARS, RESIDING AT " VAISHNAVAM", NATTAKOM VILLAGE, NATTAKOM PO, KOTTAYAM TALUK, KOTTAYAM - 686013.(AMENDED AS PER ORDER DATED 29.09.2022 IN I.A NO.1/2022). ``` ``` BY ADV P.C.HARIDAS ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2022 ALONG WITH TRPCRL 30/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 ``` ## **`TR.P(CRL.) NO. 30 OF 2021`** ## **`TO TRANSFER MC 377/2020 OF FAMILY COURT,THRISSUR`** ## **`PETITIONER/S:`** ``` ARUL P. SUGATHAN AGED 42 YEARS S/O. SUGATHAN, VYSHNAVAM HOUSE, NATTAKAM P. O., MARAYAPPALLY, KOTTAYAM. 686013. *REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN DR.SUGATHAN.P, S/O LATE T.M.PRABHA, AGED 73 YEARS, RESIDING AT "VAISHNAVAM" NATTAKOM VILLAGE, NATTAKOM P.O KOTTAYAM TALUK, KOTTAYAM 686013, AS PER ORDER DATED 29/09/2022 IN CRL.M.A.NO.1/2022. BY ADV P.C.HARIDAS ``` ## **`RESPONDENT/S:`** ``` SREEKUMARI D/O. LATE KOCHUNNI, PARAMBAN HOUSE, THAYAMKULANGARA DESOM, CHOWWALLUR VILLAGE, CHERPU P. O., THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680 561. BY ADVS. C.V.MANUVILSAN K.RAJAN (MUHAMMA) SHEEBA G O.A.ANJU SARATH KRISHNAN T. ``` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 15.11.2022 ALONG WITH TRPC 448/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 ## **C.S DIAS,J.** **--------------------------Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021** **----------------------------Dated this the 15[th] day of November, 2022.** ## **COMMON ORDER** As the transfer petitions arise out of marital discord between P.K Sreekumari (wife) and Arul P.Sugathan (husband) they are being disposed of by the common order. The parties are, for the sake of convenience, referred to as per their status in Tr.P(C)No.448/2020, which is treated as the leading case. 2. Tr.P(C)No.448/2020 is filed by the wife to transfer OP No.492/2020 filed by the husband from the Family Court, Ettumanoor, to the Family Court, Thrissur. 4 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 3. Tr.P(Crl)No.30/2021 is filed by the husband to transfer MC No.377/2020 from the Family Court, Thrissur, to the Family Court, Ettumanoor. 4. The common case of the petitioner/wife is that, she was married to the respondent on 24.4.2019 at Thrissur. After the marriage, the respondent and his family members illtreated the petitioner as she belongs to the scheduled caste community. The Cherpu Police have registered a case against the respondent and his family members. The respondent has willfully refused to maintain the petitioner. Hence, the petitioner has filed MC No.377/2020 before the Family Court, Thrissur, for an order of maintenance. Thereafter, the respondent filed OP No.492/2020 before the Family Court, Ettumanoor, against the petitioner, for a decree of nullity. There is no person to chaperone the petitioner from Thrissur to Ettumanoor to contest OP No.492/2020. The distance between Thrissur and Ettumanoor is 123 kms on one side. The petitioner 5 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 does not have means to travel to the Family Court, Ettumanoor and contest the proceeding before the said Court. Hence, OP No.492/2020 may be transferred. 5. The respondent has filed a counter affidavit, inter alia, contending that he is suffering from paranoid schizophrenia. Thus, he is not in a position to travel independently and requires the assistance of an escort. However, his mother is a cancer patient and his father is a heart patient. He has only a sister who is married and living with her husband. There is no other person to accompany the respondent from Ettumanoor to Thrissur, if the case is transferred. Hence the transfer petition may be dismissed. 6. The respondent has also filed Tr.P(Crl) 30/2021 through his father and natural guardian, to transfer MC 377/2020 from the Family Court, Thrissur to the Family Court, Ettumanoor. He has reiterated the very same contentions as averred in the counter 6 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 affidavit filed to Tr.P (C) No.448/2020. He has prayed that MC 377/2020 may be transferred. 7. Heard; Sri.Manuvilsan, the learned counsel appearing for the petitioner/wife and Sri.P.C.Haridas, the learned counsel appearing for the respondent/husband in both the transfer petitions. 8. The question is which of the transfer petitions is to be allowed? 9. On an analysis of the pleadings and materials in the two transfer petitions, it is evident that MC 377/2020 was filed by the wife before the Family Court, Thrissur, against the respondent, for an order of maintenance. 10. It is an undisputed fact that the marriage of the couple was solemnised in Thrissur district and the petitioner wife is permanently residing in her parental home at Cherpu, Thrissur. 11. It is also on record that the case registered by the Police against the respondent, for the offences 7 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is pending investigation. It is after MC No.377/2020 was filed, the respondent has filed OP 492/2020, seeking a decree of nullity. 12. The law with respect to transfer of proceedings, particularly matrimonial disputes, 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], **Santhini V. Vijaya Venkatesh** [2017 (5) KHC 48] and **N.C.V Aishwarya vs. A.S Saravana Karthik Sha** [2022 (5) KHC 182]. 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. 8 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 13. Even though the respondent has alleged that he is a person suffering from paranoid schizophrenia, he himself has filed a counter affidavit to the transfer petition. Annexure R1A medical certificate produced by the respondent shows that he is fit to resume normal duties from 20.7.2020. Thus it is to be assumed that the respondent is cured of his illness or he is suffering from paranoid schizophrenia during lucid intervals. 14. In any case, the respondent himself has sought for a decree to declare his marriage with the petitioner as null and void. 15. On a consideration of Annexure R1A certificate, I am of the definite view that the respondent's illness will not prevent him from travelling from Kottayam to Thrissur to contest the proceedings. Nonetheless, the respondent would be at liberty to move the Family Court, Thrissur and seek for dispensation of his personal appearance. 9 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 16. In the totality of the facts and circumstances of the case, the pleadings and materials on record and taking note of the law laid down by the Hon’ble Supreme Court in the aforecited decisions, I am of the firm view that discretionary powers of this Court under Sec.24 of the Code of Civil Procedure is to be exercised in favour of the petitioner/wife and the cases be transferred to one Court, so that they can be consolidated and jointly tried, which will avoid multiplicity of proceedings, save precious judicial time and conflict of decisions. In the result, I dispose of the transfer petitions in the following manner: - (i) TrP(Crl)No.30/2021 is dismissed. (ii) Tr.P(C)No.448/2020 is allowed by ordering the transfer of OP No.492/2020 from the Family Court, Ettumanoor to the Family Court, Thrissur. (iii) The Registry shall forward a copy of this order to the Family Court, Ettumanoor, with 10 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 instructions to forthwith transmit the records in OP 492/2020 to the Family Court, Thrissur. (iv) The respondent would be at liberty to move the Family Court, Thrissur and seek for dispensation of his personal appearance. (v) If any such application is filed, the Family Court, Thrissur, shall compassionately consider the application. (vi) The Family Court, Thrissur, shall, immediately on receipt of the records in OP 492/2020, post the case along with MC 377/2020. sks/15.11.2022 ## **C.S.DIAS, JUDGE** 11 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 ## **`APPENDIX OF TR.P(C) 448/2020`** ``` PETITIONER ANNEXURES ANNEXURE A1THE COPY OF THE OP NO 492 OF 21020 IS BEFORE THE FAMILY COURT ETTUMANOOR ANNEXURE A2THE COPY OF THE RECEIPT GIVEN BY THE CHERPPU POLICE STATION TO THE PETITIONER ANNEXURE A3CERTIFICATE MARRIAGE OF THE PETITIONER CERTIFICATE NUMBER 19190/2019 DATED 24.4.2019 ``` 12 Tr.P (C)No.448/2020 and Tr.P(Crl)No.30/2021 ## **`APPENDIX OF TR.P(CRL.) 30/2021`** ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM SH MEDICAL CENTRE, NATTAKAM, KOTTAYAM DATED 20.07.2020. ANNEXURE A2 TRUE COPY OF MEDICAL CERTIFICATE ISSUED FROM THE REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM IN RESPECT OF THE MOTHER OF THE PETITIONER. ANNEXURE A3TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM THE LISSY HOSPITAL IN RESPECT OF THE FATHER OF THE PETITIONER. ANNEXURE A4TRUE COPY OF O.P.NO.492/2020 ON THE FILES OF THE FAMILY COURT, KOTTAYAM, AT ETTUMANNOOR. ANNEXURE A5 TRUE COPY OF MC NO.377/2020 ON THE FILES OF THE FAMILY COURT, THRISSUR. ```