Santosh Sebastian & Sebastian Raj v. Nita Raju Isaac

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939** **Tr.P(C).No. 134 of 2017** **OP 413/2015 of FAMILY COURT, CHAVARA TO FAMILY COURT, THIRUVANANTHAPURAM** ## **PETITIONERS:** **1 SANTHOSH SEBASTIAN, AGED 34 YEARS, S/O. SEBASTIAN RAJ, T.C 2/27(10), ROSE HOUSE, MGRA-3, MELARANNOOR.P.O., THIRUVANANTHAPURAM** **2 SEBASTIAN RAJ, T.C 2/27(10), ROSE HOUSE, MGRA-3, MELARANNOOR, KARAMANA.P.O., THIRUVANANTHAPURAM** **BY ADV.SMT.A.K.PREETHA** ## **RESPONDENT:** **NITA RAJU ISSAC, AGED 33 YEARS, PALACKKASERIL, 28/50, NANMA NAGAR, THARAYIL JUNCTION, PADA SOUTH, KARUNAGAPPALLY, REPRESENTED THROUGHHER POWER OF ATTORNEY HOLDER BABY RAJU ISSAC, PALACKASSERIL, 28/50, NANMA NAGAR, THARAYIL JUNCTION, PADA SOUTH, KARUNAGAPPALLY-691 001** **BY ADVS.SRI.M.RAJENDRAN NAIR (THONNALLOOR) SRI.SREEJITH R.NAIR SRI.A.D.SHAJAN** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PBS** **Tr.P(C).No. 134 of 2017** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE A1 TRUE COPY OF THE ORIGINAL PETITION NO. 560/2015 FILED BY THE RESPONDENT BEFORE FAMILY COURT, THIRUVANANTHAPURAM.** **ANNEXURE A2 TRUE COPY OF THE ORIGINAL NO. 413/2015 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, CHAVARA. ANNEXURE A3 TRUE COPY OF THE JUDGMENT OF THIS HONORABLE COURT IN TR.PC 560/2015.** ## **RESPONDENT'S ANNEXURES** ## **NIL** ## **/TRUE COPY/** **PA TO JUDGE** **PBS 20/3/2018** ## **ALEXANDER THOMAS, J.** ------------------------------------- **Tr.P.(C). No. 134 of 2017** ------------------------------Dated this the 20[th] day of February, 2018 ## **ORDER** The prayer in this Transfer Petition (Civil) is as follows: _“Transfer O.P.No.413/2015 from the Family Court, Chavara to Family Court, Thiruvananthapuram.”_ 2. Heard Smt.A.K.Preetha, learned counsel appearing for the petitioners and Sri.M.Rajendran Nair Thonnalloor learned counsel for the respondent. 3. The first petitioner herein, who is the husband of the respondent herein. The 2[nd] petitioner, who is the father of the 1[st] petitioner herein. 4. Differences of opinion between the parties have led to matrimonial disputes and has also led to litigating proceedings between them. The petitioner husband had earlier filed Annexure-A1 O.P.No.560/2015 before the Family Court, Thiruvananthapuram for divorce. It is now submitted by both sides that the Family Court, Thiruvananthapuram had allowed the plea in O.P.No.560/2015 and granted divorce as per judgment in that O.P. 5. The respondent wife has filed Annexure-A2 O.P.No.413/2015 before the Family Court, Chavara, Kollam district., seeking return of gold ornaments and in lieu thereof its monetary value as well as the money said to have been advanced by the respondent's Tr.P.(C). No. 134 of 2017 2 father to the 1[st] petitioner. Earlier the 1[st] petitioner had filed Tr.P.(Civil) No.560/2015 before this Court seeking the very same prayer so as to transfer the above said O.P.No.413/2015 from the Family Court, Chavara to Family Court, Thiruvananthapuram. The specific plea in that Tr.P.C., was that O.P.No.413/2015 may be transferred from the Family Court, Chavara to Family Court, Thiruvananthapuram in order to try the said case along with the above referred divorce matter in O.P. No.560/2015. This Court as per Annexure-A3 judgment dated 03.03.2016 had rejected the said plea for transfer. The case of the petitioners is that the Family Court, Chavara is not having territorial jurisdiction to entertain and try Annexure-A2 O.P.No.413/2015 and that the point of jurisdiction was not raised and decided by this Court in Annexure-A3 judgment. That aspect of the matter could be initially dealt with as per the mandatory provisions in Section 21 (1) of the Code of Civil Procedure reads as follows:- _1[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases were issues are settled, at or before such settlement, and unless there has been a consequent failure of justice._ 6. Learned counsel for the respondent wife has contended that the petitioner after receiving summons from the family court has filed their counter/written statement in O.P.No.413/2015 and have never Tr.P.(C). No. 134 of 2017 3 raised the objection that the Family Court, Chavara has no territorial jurisdiction to try the above said O.P., and these factual aspects of the matter have not been in any manner controverted by the petitioners. Annexure-A2 O.P. was filed as early as on 20.07.2015 and thereafter the petitioners herein who are the respondents in that O.P. have not raised the objection regarding the alleged lack of territorial jurisdiction either at the time of filing of the written statement or thereafter. Even in Annexure-A3 Tr.P.(C) No.560/2015 filed previously by the petitioners herein before this Court, they have not raised such objection. Moreover it is brought to the notice of this Court by the respondents that pleadings are completed and all other pretrial steps are also been completed and what remains is only the trial of the case. Therefore, at this juncture it is not proper and right for this Court to consider the objections regarding the territorial jurisdiction raised by the petitioners for the first time, at this long distance of time. 7. The contention of the petitioners is to the effect that parties have solemnized their marriage initially under the provisions of Special Marriage Act and thereafter, the ceremonial marriage was conducted in the church at Karunagappally. It is pointed out by the petitioners that the respondent herein cannot claim the benefit of Section 31 of the Special Marriage Act, regarding the territorial jurisdiction of the court, in as much as the provisions contained in Section 31 of the Special Tr.P.(C). No. 134 of 2017 4 Marriage Act is applicable only for the Chapter IV and VI of the said Act and that Chapter V deals with restitution of conjugal rights and Chapter VII of the said Act deals with nullity of marriage and divorce. In the instant case, the prayers in Annexure-A2 O.P. is for return of gold ornaments and recovery of money and that, therefore, the aspects relating to institution of suit will be regulated by Section 20 of CPC, and therefore, the Annexure-A2 O.P. could have been filed only before the Family Court, Thiruvananthapuram, going by the place of residence of the petitioners herein/respondent in that O.P. It is now well established that the powers under Section 24 of CPC for transfer of cases could be invoked so as to transfer a case from a court having territorial jurisdiction to the court which is lacking such jurisdiction provided, the said transferee court is having the competence to try the suit and the parameters of Section 24 are fulfilled. 8. In the judgments of the Apex Court as in _**Sumitha Singh v. Kumar Sanjay & Anr.** r_ eported 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, convenience of wife should be given special consideration by the courts, etc. The respondent Tr.P.(C). No. 134 of 2017 5 wife is residing at Karunagapply in Kollam district and it is stated by the respondent that she would find it extremely difficult to travel all the way from Karunagappally to attend the family court proceedings at Thiruvananthapuram. Therefore, even if the present petition had been filed before the Family Court, Thiruvananthapuram, going by the provisions contained in Section 20 of the CPC, still this Court by invoking powers under Section 24 of CPC, could have transferred such a case from the Family Court, Thiruvananthapuram to Family Court, Chavara, taking into consideration the hardships and difficulties that may be faced by the wife. 9. If that be so, this Court has also the jurisdiction to deny the prayer in the present transfer petition, even if it is held that the Family Court, Chavara have no territorial jurisdiction to entertain and try the case. In this view of the matter, this Court is persuaded to hold that the prayers in this transfer petition is to be refused in the interest of justice. Moreover, as held herein above, the petitioner has not raised the objection regarding the territorial jurisdiction at the first instance in compliance with the mandatory provisions under Section 21(1) of CPC and, therefore, there is no question permitting the petitioners to raise such contention at this late stage. 10. In order to alleviate the difficulties of the parties for personally attending before the Family Court, Chavara, it is ordered in Tr.P.(C). No. 134 of 2017 6 the interest of justice that it will be open to both parties to make appropriate applications for exemption from personal appearance before the Family Court, upon which, the said request may be considered favourably, provided the parties are represented through Advocates. However, it is made clear that the parties will have to appear before the Family Court at the time of counselling and mediation process, etc., and as and when specifically so directed by the Family Court concerned. With these observations and directions, the aforecaptioned Transfer Petition (Civil) stands dismissed. sd/- **ALEXANDER THOMAS, JUDGE** AMV/12/03/2018