Rajimsha P.P. v. RIYAS and KUNCHIMUHAMMED P P

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 ``` ## `TR.P(C) NO. 60 OF 2022` ``` IN OP NO.1655/2021 OF FAMILY COURT,ERNAKULAM ``` ## `PETITIONER/1ST RESPONDENT:` ``` RAJIMSHA P.P, AGED 25 YEARS, D/O. KUNHI MUHAMMED, PUTHENPEEDIYEKKAL (H) KONNALLUR, ANANTHAVOOR P.O, TIRUR TALUK, MALAPPURAM DISTRICT 676 301 ``` ``` BY ADVS.JAMSHEED HAFIZ K.K.NESNA ``` ## `RESPONDENTS/ PETITIONER AND 2ND RESPONDENT:` ``` 1RIYAS, AGED 35 YEARS, S/O. ABDUL RAHIM, SHINE VILLA, HRA 18, KURUPPUMCHIRA ROAD, THANNIKKAL, ELAMAKKARA P.O, MALAPPURAM DISTRICT 682 026 ``` ``` 2KUNCHIMUHAMMED P P, S/O. MAMMIKUTTY, PUTHENPEEDIYEKKAL HOUSE, KONNALUR, ANANTHAVOOR P.O, MALAPPURAM DISTRICT 676 301 ``` ## `BY ADV SIVARAM R.MENON` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)No.60/2022 ``` ``` -:2:- ``` Dated this the 8[th] day of June,2022 ## **O R D E R** The transfer petition is filed under Section 24 of the Code of Civil Procedure,1908(in short, 'C.P.C.'), seeking to transfer O.P. No.1655/2021 (Annexure-A2), from the Family Court, Enakulam, to the Family Court, Tirur. 2. The petitioner’s case, in brief, in the memorandum of transfer petition is that; she is the wife of the first respondent. The second respondent is the father of the petitioner. The first respondent has filed Annexure-A1, seeking a decree for return of gold ornaments and money. Due to the matrimonial cruelty that was meted out on the petitioner, she was constrained to file O.P.No.654/2021(Annexure-A1) before the Family Court, Tirur, seeking a decree for divorce. She also filed M.C.No.166/2021 before the Judicial First Class Magistrate Court, Tirur, under Section 12 of the Protection of Women from Domestic Violence Act, 2005. In the meantime, the first respondent has filed ``` Tr.P.(C)No.60/2022 ``` ``` -:3:- ``` Annexure-A2, seeking a decree for return of money and gold ornaments from the petitioner and her father. The petitioner is residing with her parents in her natal home. She is a destitute woman with no means to maintain herself. The distance between the residence and the Family Court, Ernakulam, is more than 128 Kms. There is no person to chaperone her from Tirur to Ernakulam. The petitioner would find it extremely difficult to defend Annexure-A2. On the other hand, the first respondent would have to necessarily appear before the courts at Tirur to defend Annexure-A1 and the proceeding before the learned Magistrate. Therefore, it would not be inconvenient to him, if Annexure-A2 is transferred to the Family Court, Tirur. Hence, the transfer petition. 3. The first respondent has filed a counter affidavit, refuting the allegations in the transfer petition. He has, inter alia, contended that Annexure-A2 has been filed by the petitioner only as a counter blast to the proceedings initiated by him. M.C.No.166/2021 is ``` Tr.P.(C)No.60/2022 ``` ``` -:4:- ``` frivolous and filed only to harass the first respondent. In the midnight of February, 2021, two persons had gone to the house of the first respondent and threatened him with dire consequences, if he failed to settle the matrimonial disputes. Even though the first respondent has preferred complaints before the Police, no case has been registered against him. On the contrary, the petitioner has got a First Information Report(FIR) registered against him for an offence punishable under Section 498A of the Indian Penal Code. The hardship projected by the petitioner is not a criteria to transfer the case. Hence, the transfer petition may be dismissed. 5. Heard; Sri. Jamsheed Hafiz, the learned counsel appearing for the petitioner and Sri. Sivaram R. Menon, the learned counsel appearing for the first respondent. 6. It is an admitted fact that the petitioner has already instituted Annexure-A1 before the Family Court, Tirur. The first respondent has not sought for the ``` Tr.P.(C)No.60/2022 ``` ``` -:5:- ``` transfer of the proceedings. Even though it is contended that Annexure-A1 has already been decreed, it is seen that M.C.No.166/2021 is still pending before the learned Magistrate at Tirur. Therefore, necessarily, the first respondent would have to go to Tirur to contest the proceeding there. 7. On an appreciation of the comparative hardship between the petitioner and the first respondent, I am of the definite view that it is hardship of the petitioner that has to be given due weightage. 8. The law with respect of 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** [(2001)10 SCC 41)], **Mona Aresh Goel V. Aresh Satya Goel** [(2000) 9 SCC 255], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [AIR 2016 SC 3584], **Santhini V. Vijaya Venkatesh** [2017 (4) KLT 415 (SC)] **Valsal Nisha v.** ``` Tr.P.(C)No.60/2022 ``` ``` -:6:- ``` **Rajesh Soman Nair** [2020(8) KLR 475]. 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. 9. In the light of the pleadings and materials on record, the totality of the facts and circumstances of the case, particularly, since M.C.166/2021 is already pending before the competent Magistrate at Tirur, and the law laid down by the Hon’ble Supreme Court in the afore-cited decisions, I am inclined to exercise the discretionary powers of this Court under Section 24 of the C.P.C. In the result, I allow the transfer petition by ordering the transfer of O.P. No.1655/2021 from the Family Court, Ernakulam to the Family Court, Tirur. The Registry shall forward a copy of this order to the Family Court, Ernakulam, with instructions to forthwith transmit the records in O.P. No.1655/2021 to the Family ``` Tr.P.(C)No.60/2022 ``` ``` -:7:- ``` Court, Tirur. The Family Court, Tirur shall, immediately on the receipt of the records in the above case, issue notice to the parties for their appearance. Sd/- ## **C.S.DIAS,JUDGE** DST/08.06.22 //True copy/ P.A.To Judge ``` Tr.P.(C)No.60/2022 ``` ``` -:8:- ``` ## `APPENDIX` ``` PETITIONER’S ANNEXURE: ``` ``` ANNEXURE A1A TRUE COPY OF THE OP NO. 654/2021 BEFORE THE FAMILY COURT, TIRUR DATED 03-09-2021 ``` ``` ANNEXURE A2A TRUE COPY OF THE PETITION FILED BEFORE THE FAMILY COURT ERNAKULAM IN O.P 1655/2021 DATED 02-08-2021 ``` ``` RESPONDENT’S EXHIBITS: ``` ``` ANNEXURE R1COPY OF THE POLICE COMPLAINT GIVEN BY ME BEFORE THE ELAMAKKARA POLICE STATION ``` ``` ANNEXURE R2RECEIPT ISSUED BY ELAMAKKARA POLICE STATION ANNEXURE R3COPY OF THE FIR NO.470/2021 OF KALPAKANCHERY POLICE STATION. ```