Saritha v. V. Rajan

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2023-12-05
Court Decision / Holding: The Original Petition is allowed. O.P. No.1956/2023 pending before the Family Court, Ernakulam, is transferred to the Family Court, Irinjalakuda. The transferor court is to transmit the entire records to the transferee court forthwith. The learned Family Judge, Irinjalakuda, is directed to dispense with the presence of the respondent-husband unless unavoidable.
Final Disposition: Transfer granted; records to be transmitted; respondent’s presence dispensed with unless unavoidable.

Parties to the Case

Appellants / Petitioners

Saritha

Respondents

V. Rajan

Legal Representation & Advocates

Counsels for Petitioners

• K. M. Firoz
• M. Shajna

Counsels for Respondents

• S. Krishna Moorthy
• Mariamma Mercy Kanjanapilly
• V. Krishnan Kutty
• Balagopalan B.
• Jeena Annie Joseph
• Prabhakaran Marar K.V.

Case Synopsis & Summary

This is a transfer petition (Tr.P.(C.) No.743 of 2023) filed before the High Court of Kerala, Ernakulam, by Saritha, the wife, seeking to transfer Original Petition No.1956/2023 pending in the Family Court, Ernakulam, to the Family Court at Irinjalakuda. The respondent husband, V. Rajan, opposes the transfer, arguing that a prior compromise decree in O.P. No.36/2016 obligated him to certain actions, including maintenance and the transfer of property, and that the wife’s request for a transfer would undermine the terms of that compromise. The court analyzes whether forum convenience is a permissible ground for matrimonial disputes. It cites Supreme Court precedent, notably Sumita Singh v. Kumar Sanjay & another (2001) 10 SCC 41, to emphasize that the wife’s convenience is a relevant consideration in fixing the forum. The petitioner’s reasons are examined alongside the respondent’s medical certificates, but the court finds these certificates insufficient to negate the general principle of the wife’s forum convenience. Ultimately, the High Court allows the transfer, directing that O.P.1956/2023 be transferred to the Family Court, Irinjalakuda, with records transmitted forthwith, and with a direction to dispense with the respondent/husband’s presence unless unavoidable. The decision reflects a balanced view of forum convenience in matrimonial matters.

Legal Doctrines & Maxims

Convenience of the wife in fixing the forum for adjudication of matrimonial disputes (Sumita Singh v. Kumar Sanjay & another, (2001) 10 SCC 41)
Catena of Supreme Court decisions recognizing the wife’s forum-convenience as a factor

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant-wife seeks transfer to the Family Court at Irinjalakuda on the ground of convenience, arguing that the wife’s residence and hardships justify forum-change. Relying on Supreme Court precedents, she submits that convenience of the wife is a decisive factor in matrimonial disputes and should prevail unless opposed by compelling reasons. The filing for maintenance and the prior compromise decree should not bar transfer; the record indicates that transfer would reduce hardship for the wife, given her location and circumstances. The court’s consideration is guided by a long line of cases recognizing forum convenience as a legitimate factor.

Contentions of Respondents

The respondent-husband opposes transfer, pointing to a compromise decree in O.P. No.36/2016 that allegedly settled obligations, including maintenance and transfer of property. He contends that a party who disobeys a compromise decree cannot seek transfer merely for convenience. He also argues that alleged chronic illness in medical records does not demonstrate an impediment to travel. He suggests that the petitioner’s reasons should not override the prior decree and the stability of the forum.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sumita Singh v. Kumar Sanjay & another	(2001) 10 SCC 41	Positive	Cited as authority supporting the principle that the convenience of the wife is a relevant factor in fixing the forum for matrimonial disputes.

Extracted Judgment Text

Exact text extracted from official judgment records.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 ``` ## `TR.P(C) NO. 743 OF 2023` ``` OP 1956/2023 OF FAMILY COURT,ERNAKULAM ``` ## `PETITIONER/RESPONDENT IN OP:` ``` SARITHA AGED 50 YEARS D/O. ALOOR RAMAKRISHNAN MENON, W/O.V.RAJAN, PARAYIL HOUSE, KIZHUTHANI.P.O., THANISSERY, IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680701 BY ADVS. K.M.FIROZ M.SHAJNA RESPONDENT/PETITIONER IN OP: V.RAJAN AGED 56 YEARS S/O. LATE KANNANKIZHI BALAKRISHNAN NAIR, 'VYSAKHAM', MA BANK ROAD, CHERANELLORE P.O., ERNAKULAM DISTRICT, PIN - 682034 BY ADVS. S.KRISHNA MOORTHY(ERNAKULAM) MARIAMMA MERCY KANJANAPILLY(K/310/1985) V.KRISHNAN KUTTY(K/001652/2021) BALAGOPALAN B.(K/000006/2022) JEENA ANNIE JOSEPH(J-722) PRABHAKARAN MARAR K.V.(K/35/2011) ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C.) No.743 of 2023 ``` 2 ## **C. JAYACHANDRAN, J.** **-----------------------------------Tr.P.(C.) No.743 of 2023 -----------------------------------Dated this the 05[th] day of December, 2023** ## **ORDER** This application is preferred by the petitioner/wife who is the respondent in O.P. No.1956/2023 pending before the Family Court, Ernakulam. The said original petition is preferred by the respondent/husband seeking divorce. The petitioner seeks transfer of the said O.P. to the Family Court, Irinjalakuda. 2. Heard the learned counsel appearing on both sides. 3. This application is seriously opposed by the learned counsel for the respondent, pointing out that there was a decree by the Family Court, Ernakulam, in an earlier O.P. No.36/2016, which ``` Tr.P.(C.) No.743 of 2023 ``` 3 was one pursuant to a compromise arrived at by and between the petitioner and the respondent herein. It is the specific case of the learned counsel for the respondent that all the obligations of the respondent/husband as per the compromise decree has been complied with, whereas the obligations of the petitioner/wife has not been complied. Instead, the petitioner/wife moved the Family Court, Irinjalakuda for maintenance. As a matter of fact, a sum of Rs.10,00,000/- was paid by the respondent/husband towards maintenance, besides assigning a property having an extent of 18 cents in in favour of the petitioner, pursuant to the compromise. The compromise decree in O.P. No.36/2016 was for restitution of conjugal rights. Since the petitioner/wife refused to cohabit with the respondent/husband, the respondent instituted the present Original Petition before the Family Court, ``` Tr.P.(C.) No.743 of 2023 ``` 4 Ernakulam for divorce. According to the learned counsel, a person who has willfully disobeyed the directions contained in the compromise decree in O.P. No.36/2016 is not entitled to get the matter transferred to a place of her choice on the basis of convenience. 4. Having heard the learned counsel for the petitioner and the learned counsel for the respondent, this Court is afraid whether the contentions raised by the learned counsel for the respondent would hold good, in the context of allowing the transfer petition is concerned. The Hon’ble Supreme Court in a catena of decisions, including the one in Sumita Singh v. Kumar Sanjay & another [(2001) 10 SCC 41], has categorically held that, in fixing the forum for adjudication of matrimonial disputes, the convenience of the wife is certainly a matter to be taken into consideration. ``` Tr.P.(C.) No.743 of 2023 ``` 5 The reasons for filing the instant original petition cannot have any impact on such dictum, which recognises the convenience of the wife. In such circumstances, this Court cannot find any reason to disallow the present petition. 5. Learned counsel for the respondent further submitted that the respondent is chronically sick. Exts.R1(C) to R1(H) are the various medical certificates produced in proof of the same. Ext.R1(C) speaks of Cervical Radiculopathy, which certificate is seen issued to the HR Department of the Bharath Petroleum for the purpose of availing leave. Ext.R1(D) speaks of shoulder pain and R1(E) refers to cervical condition and physiotherapy for that. R1(F) is again a prescription of a medicine, where the diagnosis is moderate AC joint arthropathy. R1(F) refers to moderate acromio clavicular joint hypertrophy, with PDFS ``` Tr.P.(C.) No.743 of 2023 ``` 6 hyperintensity, along with other clinical situations. Ext.R1(G) is a bill indicating consultation charges. R1(G) is again a bill for taking an X-ray. R1(G) and R1(H) are bills with respect to medicines. 6. After perusing the medical records, this Court is of the opinion that the contention of the learned counsel for the respondent that he is chronically sick is not indicated or revealed from the medical records produced. None of the documents refers to any serious disability for the respondent, in the context of travelling. The Hon’ble Supreme Court recognised the convenience of the wife in the matter of fixing the forum for adjudication of matrimonial disputes, on the principle that the husband, in ordinary circumstances, would stand in a better footing to travel to the Family Court, within whose jurisdictional limits the wife is residing. The said ``` Tr.P.(C.) No.743 of 2023 ``` 7 presumption cannot be dislodged by virtue of the instant medical certificates, which speaks only of shoulder pain, physiotherapy etc. In these circumstances, this Original Petition is allowed and O.P. No.1956/2023 pending before the Family Court, Ernakulam is directed to be transferred to the Family Court, Irinjalakuda. The transferor Court shall transmit the entire records to the transferee Court, forthwith. However, there will be a direction to the learned Family Judge, Irinjalakuda to dispense with the presence of the respondent/ husband, unless the same is unavoidable. ## **Sd/-** **C. JAYACHANDRAN** ## **JUDGE** SKP/05-12 ``` Tr.P.(C.) No.743 of 2023 ``` 8 ## `APPENDIX OF TR.P(C) 743/2023` |`PETITIONER’S ANNEXURES:`|`PETITIONER’S ANNEXURES:`| |---|---| |`ANNEXURE A1`|`TRUE COPY OF NOTICE RECEIVED BY PETITIONER`| ||`HEREIN IN FORM NO. 8 IN O.P. NO. 1956 OF 2023`| ||`ON THE FILES OF FAMILY COURT, ERNAKULAM DATED`| ||`15.09.2023`| |`ANNEXURE A2`|`A TRUE COPY OF THE SAID PETITION, M.C. NO. 211`| ||`OF 2021 ON THE FILES OF FAMILY COURT,`| ||`IRINJALAKUDA DATED NOVEMBER, 2021`| |`ANNEXURE A3`|`A TRUE COPY OF THE SAID MEDICAL CERTIFICATE`| ||`DATED 30.10.2022 ISSUED BY THE AMRITA INSTITUTE`| ||`OF MEDICAL SCIENCES`| |`RESPONDENT’S ANNEXURES:`|| |`ANNEXURE R1(A)`|`TRUE COPY OF THE COMPROMISE PETITION I.A.`| ||`NO.2861/2020 IN JUDGEMENT IN OP NO.36/2016`| ||`ISSUED BY THE FAMILY COURT ERNAKULAM DATED`| ||`22.03.2021`| |`ANNEXURE R1(B)`|`A TRUE COPY OF THE ABOVE ORDER OF THE FAMILY`| ||`COURT, IRINJALAKUDA ISSUED IN IA NO. 4 OF 2022`| ||`IN O.P. NO.1320 /2021`| |`ANNEXURE R1(C)`|`A CERTIFICATE ISSUED IN THIS RESPECT DATED`| ||`20.11.2023 BY THE SPECIALIST HOSPITAL,`| ||`ERNAKULAM`| |`ANNEXURE R1(D)`|`A TRUE COPY OF THE TREATMENT CARD ISSUED BY`| ||`THIS HOSPITAL DATED 05.09.2023`| |`ANNEXURE R1(E)`|`A TRUE COPY OF THE DOCUMENT ISSUED BY THE ST.`| ||`JAMES HOSPITAL, MANJUMMEL`| |`ANNEXURE R1(F)`|`THE RADIOLOGY REPORT ISSUED BY THE DEPARTMENT`| ||`OF THE HOSPITAL DATED 23.10.2023`| |`ANNEXURE R1(G)`|`TRUE COPY OF THE REPORT OF THE HOSPITAL DATED`| ||`26.10.2023 OF THE ST. JAMES HOSPITAL, CHALAKUDY`| |`ANNEXURE R1(H)`|`TRUE COPY OF THE CONSULTATION ISSUED BY THE`| ||`SAME HOSPITAL DATED 01.11.2023`| ``` TRUE COPY ``` ``` P.A. TO JUDGE ```