Samuel John and P.V. John Kutty v. Jolly Samuel

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939** **Tr.P(C).No. 29 of 2017** **(TO TRANSFER OP.NO.1208/2015 OF FAMILY COURT, MAVELIKKARA TO FAMILY COURT, ERNAKULAM)** **-------------** ## **PETITIONER(S)/RESPONDENTS:** **1 SAMUEL JOHN, AGED 40 YEARS, S/O.P.V.JOHN KUTTY, GILGAL VILA NO.6, KOONAMMAVU KARA, VARAPPUZHA VILLAGE, ERNAKULAM-683 517, REPRESENTED BY POWER OF ATTORNEY HOLDER, P.V.JOHN KUTTY, AGED 71 YEARS, S/O.VARGHESE, GILGAL 6, MARKET JUNCTION, KOONAMAVU P.O, VALLUVALLY KARA, KOTUUVALLY VILLAGE, PARAVUR TALUK** **2 P.V.JOHN KUTTY, AGED 71 YEARS, S/O.VARGHESE, GILGAL-6, MARKET JUNCTION, KOONAMAVU P.O, VALLUVALLY KARA, KOTUUVALLY VILLAGE, PARAVUR TALUK.** **BY ADVS.SRI.M.B.SANDEEP SMT.R.PRIYA SRI.B.SURJITH** ## **RESPONDENT/PETITIONER:** **JOLLY SAMUEL, AGED 36 YEARS, D/O.T.YOHANAN, EBANESAL HOME, MULAKUZHA P.O., CHENGANNUR TALUK, ALAPPUZHA, PIN-689 505** **BY ADV. SRI.ISSAC NINAN** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts 6/3/2018** ## **Tr.P(C).No. 29 of 2017** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1 TRUE COPY OF THE OP NO.1208/2015 BEFORE THE FAMILY COURT, MAVELIKKARA ANNEXURE A2 TRUE COPY OF THE COMPLAINT FILED IN MC.NO.3/2016 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IX, ERNAKULAM AT KUNNUMPURAM. ANNEXURE A3 TRUE COPY OF THE OP NO.983/2016, BEFORE THE FAMILY COURT, ERNAKULAM ANNEXURE A4 TRUE COPY OF THE ORDER DATED 20/01/2016 IN CMP.NO.37/2016 ON THE FILES PENDING OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IX, ERNAKULAM AT KUNNUMPURAM.** ## **RESPONDENT'S ANNEXURES: NIL** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts 6/3/2018** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Tr.P.(C) No.29 of 2017 ----------------------------------------- ## Dated this the 8[th] day of February, 2018 ## _**O R D E R**_ The prayer in this Transfer Petition (Civil) is as follows : _“Transfer O.P.No.1208/2015 pending before the Hon'ble Family Court, Mavelikkara, to the Hon'ble Family Court, Ernakulam.”_ 2. Heard Sri.M.B.Sandeep, learned counsel appearing for the petitioners and Sri.Issac Ninan, learned counsel appearing for the respondent. 3. The first petitioner herein is the husband of the respondent herein. The second petitioner herein is the father of the first petitioner. Differences of opinion between the parties have led to matrimonial disputes which in turn has led to litigative proceedings between them. The respondent-wife has filed Annexure-A1 O.P.No.1208 of 2015 before the Family Court, Mavelikkara, seeking return of money. The first petitioner-husband has filed Annexure-A3 O.P.No.983 of 2016 before the Family Court, Ernakulam, seeking divorce. The respondent-wife had filed Annexure-A2 Maintenance Case, M.C.No.3 of 2016 before the Judicial First Class Magistrate Court-IX, Ernakulam, at Kunnumpuram, under the provisions of the Protection of Women from Domestic Violence Act. Annexure-A4 order dated 20.1.2016 was rendered by the Judicial First Class Magistrate Court-IX Ernakulam, at Kunnumpuram on : **:2::** Tr.P.(C) No.29/17 Crl.M.P.No.37 of 2016 in the abovesaid proceedings under the Protection Women from Domestic Violence Act. Annexure-A4 order dated 20.1.2016, which reads as follows : _“Petitioner present. Heard. 2. Perused the records._ _3. I am satisfied with the disclosure of the act of domestic violence against the petitioner. Delay may defeat the very purpose of the petition. Hence an interim order is passed restraining the respondents from torturing the petitioner both physically and mentally that adversely affect the peaceful life of the petitioner from forcefully evicting the petitioner from the flat named Gilgal-5, No.CC 32/1158 A1, Rohini Apartment, Palarivattom, Cochin Corporation, Ernakulam, and alienating the same. They are also restrained from disconnecting the water connection and electricity of the said flat until further orders.”_ 4. As per Annexure-A4 order, the learned Magistrate has found that he is satisfied with the disclosure of the act of domestic violence against the wife and that an interim order was passed as per Annexure-A4 order restraining the respondents therein from torturing the petitioner-wife and forcefully evicting her from the flat mentioned therein at Palarivattom, Ernakulam, and they are also restrained from disconnecting the water connection and electricity of the said flat until further orders. The respondents in Annexure-A4 proceedings are the husband, father (The abovesaid 2 petitioners in the present petition) as well as the mother and brother of the husband. The specific case of the petitioners that the first petitioner is abroad and the second petitioner is aged 71 and is suffering from serious ailments. The respondent-wife finds it extremely difficult to travel all the way from Alappuzha to attend to the litigative proceedings in O.P.No.1208 of 2015 now pending before : **:3::** Tr.P.(C) No.29/17 the Family Court, Mavelikkara. It is on this ground that the plea for transfer has been mainly made. 5. Learned counsel for the petitioners would argue that the respondent - wife is now residing at Ernakulam and that even she will be equally or more benefited in case Annexure-A1 O.P.No.1208 of 2015 is transferred to the Family Court, Ernakulam. However, the pleadings of the memorandum of Transfer Petition (Civil) would reveal that there are no averments anywhere in this petition that the wife has been residing at Ernakulam, and that therefore, she will also be benefited by allowing the plea for transfer to Ernakulam. The only averment in this petition is that Annexure-A4 interim order has been passed by the Judicial First Class Magistrate Court-IX, Ernakulam at Kunnumpuram in the proceedings under the Domestic Violence Act, whereby the wife had secured interim order under that Act and had got a temporary order to live in the flat owned by the husband. It has been brought to the notice of this Court that the spouses do not have any children. Sri.Isaac, Ninan, learned counsel appearing for the respondent -wife would submit on the basis of instructions from his party that it is true that pursuant to Annexure-A4 interim order dated 20.1.2016 granted by the learned Magistrate in the proceedings under the Domestic Violence Act the wife was staying in the flat at Palarivattom, Ernakulam, owned by the husband. Later respondents in Annexure-A4 proceedings made a motion before the learned Magistrate to vacate the said order and now : **:4::** Tr.P.(C) No.29/17 on 13.1.2018 the learned Magistrate has lifted and vacated the interim residence order granted to the petitioners in terms of Annexure-A4. Accordingly, it is pointed out by the learned counsel appearing for the respondent-wife that the abovesaid contention made on behalf of the petitioners that Annexure-A1 case should be transferred from Mavelikkara to Ernakulam on the premise as if the respondent-wife is permanently staying at Ernakulam is absolutely misleading and untenable. To a specific query raised by this Court to the learned counsel appearing for the petitioners as to whether or not Annexure- A4 order has already been lifted and vacated by the learned Magistrate. Sri.M.B.Sandeep, learned counsel appearing for the petitioners would fairly submit that Annexure-A4 has already been lifted by the learned Magistrate on 13.1.2018. The very basis of the contentions raised by the petitioners that the matter should be transferred to Ernakulam, on the premise that the respondent-wife is residing at Ernakulam, etc. appears to be not sustainable and tenable. That apart there are no averments in this petition that the respondent-wife has been residing at Ernakulam. It is the admitted case of the petitioners that the first petitioner-husband is permanently employed abroad. The only difficulty expressed on behalf the petitioners is that the second petitioner is aged 71 years and that he is having serious ailments and that he finds it difficult to travel all the way from Ernakulam to attend to the Family Court, Mavelikkara. The said difficulty expressed on behalf of the : **:5::** Tr.P.(C) No.29/17 second petitioner could be alleviated by issuing necessary directions in the matter of grant of personal exemption. 6. In the judgments of the Apex Court as in _**Sumitha Singh v. Kumar Sanjay & Anr.**_ reported in (2001) 10 SCC 41, _**Rajwinder Kaur v. Balwinder Singh**_ reported in (2003) 11 SCC 726, _**Mona Aresh Goel v. Aresh Satya Goel**_ , reported in (2000) 9 SCC 255, _**Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap**_ , reported in AIR 2016 SC 3584, etc. it has been held that in the matter of transfer of cases from one Family Court to another, inconvenience to wife should be given special consideration by the courts, etc. 7. In the light of these aspects, this Court is not inclined to grant the prayer for transfer as sought for in this petition. However, it is ordered that the second petitioner will be at liberty to make appropriate application in the matter of grant of personal exemption along with supporting materials like medical records, etc. seeking grant of personal exemption before the Family Court, Mavelikkara, upon which the said court shall favourably consider the application, provided the party is represented through the Advocate. However, needless to say that the parties will have to appear at the time of mediation, counselling, etc. and as and when specifically so directed by the Family Court concerned. 8. Sri.Issac Ninan, learned counsel appearing for the respondent-wife, would submit that it is learnt that the pre-trial steps in : **:6::** Tr.P.(C) No.29/17 relation to Annexure-A1 O.P.No.1208 of 2015 have been completed and that the matter was posted for evidence. Learned counsel appearing for the respondent would also submit that the trial in the matter could be completed within about three months and directions may also be given to ensure that the evidence of the parties are recorded through the Advocate Commission, etc. The abovesaid plea made on behalf of the respondent-wife is also supported by the learned counsel appearing for the petitioners. 9. Accordingly, it is ordered that the Family Court, Mavelikkara, will take all reasonable measures possible under the circumstances to ensure the early disposal of O.P.No.1208 of 2015, without much delay, preferably within a period of one year from the date of production of a certified copy of this order. It is for the parties to make appropriate applications before the Family Court, Mavelikkara, if they want to get the evidence recorded to the Advocate Commissioner and it is for the Family Court to take decision on such requests made by the parties. With these observations and directions, the Transfer Petition (Civil) will stand finally disposed of. ## **ALEXANDER THOMAS JUDGE** csl