Sangeetha C.S. v. Senthil Kumar M.S.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ``` ``` TR.P(C) NO. 67 OF 2022 ``` ``` IN OP 256/2021 OF FAMILY COURT,THRISSUR ``` ## `PETITIONER:` ``` SANGEETHA C. S. AGED 32 YEARS D/O. C. SATHYAN, PATHAZHAPARAMBIL HOUSE, COIMBATORE, TAMIL NADU (NOW RESIDING AT DOOR NO. 33/A, ANUGRAHA NIVAS, PANAYIKKAL LANE, EROOR WEST, THHRIPPUNITHARA, ERNAKULAM 682 306) ``` ``` BY ADV T.M.RAMAN KARTHA ``` ``` RESPONDENT: ``` ``` SENTHIL KUMAR M S AGED 42 YEARS S/O M A SIVANATHAN ACHARY, MADAPARAMBIL, PERUMBALLISSERY, CHEERPPU, THRISSUR 680 561 ``` ``` BY ADVS.UNNIKRISHNAN T.A K.K.AKHIL(K/583/2014) ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2023, ALONG WITH Tr.P(C).69/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:2:- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ``` ``` TR.P(C) NO. 69 OF 2022 ``` ``` IN GOP 883/2021 OF FAMILY COURT,THRISSUR ``` ## `PETITIONERS:` ``` 1SANGEETHA C.S. AGED 32 YEARS D/O. C.SATHYAN, PATHAZHAPARAMBIL HOUSE, COIMBATORE, TAMIL NADU, (NOW RESIDING AT DOOR NO.33/A, ANUGRAHA NIVAS, PANAYIKKAL LANE, EROOR WEST, THRIPPUNITHURA, ERNAKULAM-682306). ``` ``` 2DIYA, AGED 9 YEARS D/O. SENTHIL KUMAR, PATHAZHAPARAMBIL HOUSE, COIMBATORE, TAMIL NADU, (NOW RESIDING AT DOOR NO.33/A, ANUGRAHA NIVAS, PANAYIKKAL LANE, EROOR WEST, THRIPPUNITHURA, ERNAKULAM-682306). ``` ``` 3DEV, AGED 7 YEARS D/O.SENTHIL KUMAR, PATHAZHAPARAMBIL HOUSE, COIMBATORE, TAMIL NADU, (NOW RESIDING AT DOOR NO.33/A, ANUGRAHA NIVAS, PANAYIKKAL LANE, EROOR WEST, THRIPPUNITHURA, ERNAKULAM-682306). (PETITIONERS 2 AND 3 ARE BEING REPRESENTED BY THEIR MOTHER AND NEXT FRIEND SANGEETHA C.S.) ``` ``` BY ADV T.M.RAMAN KARTHA ``` ``` RESPONDENT: ``` ``` SENTHIL KUMAR M.S AGED 42 YEARS S/O. M.A.SIVANANTHAN ACHARY, MADAPARAMBIL, PERUMBALLISSERY, CHEERPPU, THRISSUR-680561. ``` ``` BY ADVS.UNNIKRISHNAN T.A K.K.AKHIL(K/583/2014) ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2023, ALONG WITH Tr.P(C).67/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:3:- ``` Dated this the 23[rd] day of February, 2023 ## **C O M M O N O R D E R** As the transfer petitions are between the same parties, they are being disposed of by this common order. Tr.P(C) No.67/2022 is filed to transfer O.P.No.256/2021 and Tr.P(C) No.69/2022 is filed to transfer G.O.P.No.883/2021 both from the Family Court, Thrissur to the Family Court, Ernakulam. The parties and pleadings are, for the sake of convenience, and wherever the context so requires, referred to as per the litigate status in Tr.P.(C)No.69/2021, which is treated as the leading case. 2. The petitioners have averred in the transfer petition that the first petitioner is the wife of the respondent. The petitioners 2 and 3 are the minor children born in the wedlock between the first petitioner and the respondent. The petitioners are permanently residing in Ernakulam. The marital ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:4:- ``` relationship between the first petitioner and the respondent is strained. There was an earlier round of litigation between the parties before the Family Court, Ernakulam. The disputes between the parties were settled and they resumed cohabitation on the basis of an agreement. Subsequently, again disputes arose and the petitioners have filed M.C.No.30/2021 before the Judicial First Class Magistrate Court, Thrippunithura, against the respondent, invoking the provisions of the Protection of Women from Domestic Violence Act, 2005. The respondent is contesting M.C.No.30/2021 before the said Magistrate. Thereafter, the respondent has filed G.O.P.No.883/2021 & O.P.No.256/2021 before the Family Court, Thrissur, against the first petitioner, for an order for the custody of the petitioners 2 and 3 and a decree for dissolution of marriage. The petitioners are permanent residence of Thrippunithura. It is practically impossible for them to travel all the ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:5:- ``` way from Thrippunithura to Thrissur, to contest the above two cases. Hence, the transfer petition. 3. The respondent has filed a counter affidavit in Tr.P.(C)No.69/2022, denying the allegations in the transfer petition. He has contended that he is suffering from 60% physical disability. It would be difficult for him to travel from Thrissur to Ernakulam, to contest the two cases, if they are transferred. Hence, the transfer petitions may be dismissed. 4. The first petitioner has filed a reply affidavit to the counter affidavit contending that the allegations that the respondent is having disability is incorrect. In fact, he met with an accident even prior to the marriage. Even after the accident, he is carrying on his business in Thrissur. Moreover, he is contesting the proceedings before the Magistrate, without any difficulty. Therefore, the defence of the respondent is untenable and the counter affidavit may be rejected. ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:6:- ``` 5. Heard; Sri. T.M. Raman Karth, the learned counsel appearing for the petitioners and Sri. T.A. Unnikrishnan, the learned counsel appearing for the respondent. 6. Undisputedly, there was an earlier round of litigation between the parties before the Family Court, Ernakulam, as M.C.No.357/2016 and O.P.No. 1098/2016. At that point of time also, the respondent appeared before the Family Court, Ernakulam. Subsequently, the parties resumed cohabitation. But, the relationship again got strained and the petitioners have filed M.C.No.30/2021 before the Jurisdictional Magistrate. The respondent is contesting the said case before the Magistrate at Thrippunithura. 7. The respondent’s case is that he would be put to inconvenience, due to his disability, if the cases are transferred. 8. The law with respect to transfer of ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:7:- ``` 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)], **N.C.V. Aiswarya v. A.S. Sharavana Karthik Sha** [2022(5) KHC 185] and **Valsal Nisha v. 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 law laid down in the afore-cited decisions, the uncontroverted pleadings and materials on record and the totality of the facts and circumstances of the case, taking into account the ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:8:- ``` fact that there was an earlier round of litigation between the parties before the Family Court, Ernakulam and M.C.No.30/2021 is presently pending before the Jurisdictional Magistrate at Thrippunithura, I am of the definite view that the difficulties projected by the respondent is untenable. Thus, I am inclined to exercise the discretionary powers of this Court Section 24 of the Code of Civil Procedure,1908, and order the transfer of G.O.P.No.883/2021 & O.P.No.256/2021 from the Family Court, Thrissur to the Family Court, Ernakulam. Nonetheless, the respondent would be at liberty to move the Family Court, Ernakulam, and seek for dispensation of his personal appearance. In the result, I pass the following directions: - (i) The transfer petitions are allowed, by ordering the transfer of O.P.No.256/2021 & G.O.P.No.883/2021 from the Family Court, Thrissur to the Family Court, Ernakulam. ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:9:- ``` - (ii) The parties would be at liberty to move the Family Court, Ernakulam and seek for the consolidation and joint trial of all the cases between them. - (iii) The Registry shall forthwith forward a copy of the order to the Family Court, Thrissur with instructions to transmit the records in the above two cases to the Family Court, Ernakulam. - (iv) The Family Court, Ernakulam shall, immediately on receipt of the records in the above two cases, issue notice to the parties for their appearance. - (v) The respondent would be at liberty to move the Family Court, Ernakulam, and seek for dispensation of his personal appearance. Sd/- ## **C.S.DIAS,JUDGE** DST/23.02.23 //True copy/ P.A.To Judge ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:10:- ``` ## `APPENDIX OF TR.P(C) 67/2022` ``` PETITIONER ANNEXURES ANNEXURE 1A TRUE COPY OF OP NO. 256/2021 PENDING BEFORE THE FAMILY COURT, THRISSUR ``` ``` RESPONDENT’S EXHIBITS : NIL ``` ``` Tr.P.(C)Nos.67 & 69/2022 ``` ``` -:11:- ``` ## `APPENDIX OF TR.P(C) 69/2022` ``` PETITIONER ANNEXURES ANNEXURE 1A TRUE COPY OF GOP NO.883/2021 PENDING BEFORE THE FAMILY COURT, THRISSUR. RESPONDENT ANNEXURES ANNEXURE R1(A)TRUE COPY OF THE DISABILITY CERTIFICATE DATED 12/1/2017 ISSUED FROM THE GENERAL HOSPITAL, THRISSUR ```