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**'C.R'**
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT**
# **THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943**
**TR.P(C) NO. 764 OF 2019**
# **AGAINST THE ORDER/JUDGMENT IN OP 880/2019 OF FAMILY COURT, THALASSERY, KANNUR**
## **PETITIONER/S:**
RATHEESH AGED 43 YEARS S/O.PARAMESWARAN NAIR, THAIVALAPPIL HOUSE, PORATHISSERY AMSOM AND MOORKANAD DESOM, MOORKANAD P.O., TRISSUR DISTRICT.
BY ADV T.N.MANOJ
## **RESPONDENT/S:**
- 1 SARANYA
AGED 24 YEARS
W/O.RATHEESH, SARADA MANDIRAM, KAYANI P.O. MATTANNUR, NOW PERMANENTLY RESIDING AT VILAKKATHARATH HOUSE, PARIYARAM VILLAGE AND DESOM, CHALAKUDY TALUK, TRISSUR DISTRICT, PIN680721.
- 2 SHREYAS,
AGED 1 & ¾ YEARS
MINOR, RESIDING AT VILAKKATHARATH HOUSE, PARIYARAM VILLAGE AND DESOM, CHALAKUDY TALUK, TRISSUR DISTRICT, PIN-680721, REPRESENTED BY THE
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MOTHER AND GUARDIAN 1ST RESPONDENT SARANYA.
BY ADVS. SRI.LOHITHAKSHAN CHATHADI KANNOTH SRI.P.BIJIMON SRI.JACOB SAMUEL
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.6.2021, THE COURT ON 07.07.2021 DELIVERED THE FOLLOWING:
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**'C.R'**
## **V.G.ARUN, J.**
## **-----------------------------------------------**
## **Tr.P.C.No. 764 of 2019**
## **-----------------------------------------------**
## **Dated this the 7[th] day of July, 2021**
## **O R D E R**
The marital discord among the petitioner-husband and the respondent-wife resulted in the respondent filing O.P.1223 of 2017 for divorce and M.C.No.123 of 2019 for maintenance before the Family Court, Irinjalakuda. Thereafter, the respondent filed, O.P.880 of 2019 before the Family Court, Thalassery seeking past maintenance and M.C.No.61 of 2019 before the Judicial First Class Magistrate Court, Thalassery under the Protection of Women from Domestic Violence Act. This transfer petition is filed by the husband seeking to transfer O.P.No.880 of 2019 from the Family Court, Thalassery to the Family Court, Irinjalakuda.
2. Heard Sri.Manoj C.N., learned counsel for the petitioner and Sri.C.K.Lohithakshan, learned counsel for the respondent.
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3. Learned counsel for the petitioner put forth the following contentions;
The respondent is a permanent resident of Pariyaram in Chalkkudy Taluk, the marriage was solemnized at Pariyaram and the parties had resided together at Porathussery, all within the jurisdictional limits of the Family Court, Irinjalakkuda. Accordingly, the respondent has filed the original petition for divorce and the maintenance case before the Irinjalakuda Family Court. She has filed O.P.No.880 of 2019 before the Family Court, Thalassery with the sole intention of harassing the petitioner. The allegation that the respondent had to shift her residence from Irinjalakuda to Thalassery due to harassment and threat from the petitioner is patently false. The parents of the petitioner are unnecessarily arrayed as parties to the M.C case filed before the JFCM Court, Thalassery. As a result, the aged parents, who are suffering from various ailments, are compelled to travel from Porathussery to Thalassery. Even now the notices issued to the respondent are being served in her pariyaram address. Hence, O.P.No.888 of 2019 is liable to be transferred to the Family Court, Irinjalakuda.
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4. Learned counsel for the respondent refuted the contentions and submitted that the respondent is compelled to stay away from her parental house by reason of the petitioner’s harassment and threat. The fact that the respondent had earlier filed cases before the Family Court, Irinjalakkuda will not estop her from filing cases in another Family Court, based on her residence.
5. From the arguments advanced, the question arising for consideration is whether her present residence entitles the respondent to institute proceedings before the Family Court, Thalassery. In this context, it will be apposite to have a look at Section 19 of the Hindu Marriage Act.
“ _**19 Court to which petition shall be presented.** -Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction-_
(i) _the marriage was solemnised, or_
(ii) _the respondent, at the time of the presentation of the petition, resides, or_
(iii) _the parties to the marriage last resided together, or_
(iiia) _in case the wife is the petitioner, where she is_
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_residing on the date of presentation of the petition, or_
(iv) _the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.”_
6. Going by Section 19(iii-a), the wife can present her petition before the Family Court within the limits of whose jurisdiction she is residing on the date of presentation. Even going by the averments in Annexure A original petition, the respondent has shifted her residence to a relative's house in Mattannur Municipality for the time being, apprehending hurt at the hands of the petitioner. Even the original petition filed before the Thalassery Family Court, the cause of action is stated to have arisen at Porathussery. According to the learned counsel for the petitioner, the respondent is even now residing at Pariyaram and contention to the contrary is made only with the intention of continuing the original petition before the Family Court, Thalassery.
## 7. In _**Jeewanti Pandey v. Kishan Chandra Pandey**_ [(1981)
4 SCC 517], the Honourable Supreme considered the meaning of the
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## term ‘residence’ occurring 19(ii) of the Act and held as under;
_“_ _**13.** It is plain in the context of clause (ii) of Section 19 of the Act, that the word “resides” must mean the actual place of residence and not a legal or constructive residence; it certainly does not connote the place of origin. The word “resides” is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant, at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora, had jurisdiction, or not. That being so, the High Court was clearly in error in upholding the finding of the learned District Judge that he had jurisdiction to entertain and try the petition for annulment of marriage filed by the respondent under Section 12 of the Act.”_
Applying the same meaning to Section 19(iii-a) also, temporary shifting of abode or a brief sojourn by the wife cannot be termed as ‘residence’, thereby enabling her to approach the Family Court, within the limits of which she is residing at the time of presentation of the petition.
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8. It is pertinent to note that the respondent has no case of having shifted her residence to Mattannur permanently. On the other hand, the pleading in Annexure A original petition is to the effect that she is staying away from her parental home due to the petitioner's threat. Therefore, even according to the petitioner, her permanent residence continues to be at Pariyaram. Moreover, the original petition for divorce filed by the respondent is still pending before the Family Court at Irinjalakuda. The respondent has not taken any step for getting that original petition transferred to the Family Court, Thalassery. In such circumstances, I find merit in the contention of the petitioner that the jurisdictional court continues to be the Family Court, Irinjalakuda and hence, O.P.No.880 of 2019 is liable to be transferred to the Family Court, Irinjalakuda in order to avoid conflicting decisions.
In the result, the transfer petition is allowed. O.P.No.880 of 2019 on the files of the Family Court, Thalassery shall forthwith be transferred to the Family Court, Irinjalakuda.
## **Sd/-**
## **V.G.ARUN, JUDGE**
_vgs_
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## **APPENDIX OF TR.P(C) 764/2019**
PETITIONER ANNEXURES
ANNEXURE (A) TRUE COPY OF OP 880/2019 OF THE FAMILY COURT THALASSERY.
ANNEXURE (B) TRUE COPY OF OP 1223/17 OF THE FAMILY COURT IRINJALAKUDA.
ANNEXURE (C) TRUE COPY OF MC 132/2019 OF THE FAMILY COURT, IRINJALAKUDA.
ANNEXURE (D) TRUE COPY OF THE MC 61/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT AT MATTANNUR.
