Sheeba Jacob v. Jacob Cheriyan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939** **Tr.P(C).No. 290 of 2017** **----------------------E.P. NO. 18/2017 IN OP 167/2011 of FAMILY COURT, THIRUVALLA TO FAMILY COURT, MALAPPURAM** **----------** **PETITIONER/JUDGMENT DEBTOR :** **---------------------------** **SHEEBA JACOB, AGED 32 YEARS, W/O.JACOB CHERIYAN, PANACHAYIL HOUSE, PALLIKOOTHU(PO),CHUNGATHARA, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **BY ADV.SRI.K.B.ARUNKUMAR** **RESPONDENT/DECREE HOLDER:** **------------------------** **JACOB CHERIYAN, AGED 41 YEARS, S/O.CHERIYAN, VADAKKAROTTU HOUSE, THURUTHICAD (PO), KALLUPARA VILLAGE, MALLAPPALLY TALUK, TIRUVALLA, PATHANAMTHITTA DISTRICT. PIN-689597.** **BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)** **THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** **Tr.P(C).No. 290 of 2017** ## **-----------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** ## **----------------------** |**ANNEXURE**|**1:**|**COPY OF THE DECREE ALONG WITH THE COMPROMISE IN OP**| |---|---|---| |||**NO. 167/2011 ON THE FILE OF FAMILY COURT, TIRUVALLA**| |||**DATED 20/6/2014.**| |**ANNEXURE**|**2:**|**COPY OF THE RECEIPTS ISSUED BY THE SCHOOL AUTHORITIES**| |||**FOR THE FEES COLLECTED.**| |**ANNEXURE**|**3:**|**COPY OF ORIGINAL PETITION NUMBERED AS O.P.NO. 96/2017**| |||**PENDING ON THE FILE OF FAMILY COURT, MALAPPURAM DATED**| |||**18/1/2017.**| |**ANNEXURE**|**4:**|**COPY OF PETITION NUMBERED AS OP NO. 96/2017 PENDING ON**| |||**THE FILE OF FAMILY COURT, MALAPPURAM DATED 18/2/2017.**| |**ANNEXURE**|**5:**|**COPY OF THE EXECUTION PETITION NUMBERED AS EP NO.**| |||**18/2017 IN OP NO. 167/2011 NO2 PENDING ON THE FILE OF**| |||**THE FAMILY COURT, TIRUVALLA DATED 6/4/2017.**| ## **RESPONDENT'S ANNEXURES :** **----------------------** **ANNEXURE R1(a): COPY OF COMPROMISE AND DECREE IN OP 167/2011 OF THE FAMILY COURT, THIRUVALLA, DATED 30/6/2014. ANNEXURE R1(b): COPY OF SETTLEMENT DEED NO. 1847/2014 OF MALLAPPALLY SRO EXECUTED BY THE RESPONDENT. ANNEXURE R1(c): COPY OF THE ORDER DATED 17/2/2016 IN IA NO. 745/2015 IN OP 167 OF 2011 OF THE FAMILY COURT, TIRUVALLA** **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **ALEXANDER THOMAS, J** . ------------------------------------------------- Tr.P.(C) No. 290 of 2017 ------------------------------------------------Dated this the 19[th] day of February, 2018 ## **O R D E R** The main prayer in this Transfer Petition (Civil) filed under Section 24 of the Code of Civil Procedure is as follows : “For these and other grounds to be urged at the time of the hearing it is humbly prayed that this Hon'ble Court may be pleased to pass an order transferring E.P. No.18/2017 in O.P. No.167 of 2011 on the file of the Family Court, Thiruvalla to the Family Court, Malappuram in the interest of justice.” 2. Heard Sri.K.B. Arunkumar, learned counsel appearing for the petitioner and Sri.K.N. Radhakrishnan (Thiruvalla), learned counsel appearing for the respondent. 3. The petitioner herein is the wife and respondent is the husband. Due to the matrimonial disputes between the spouses, the the petitioner/wife has earlier filed O.P. No.167/2011 before the Family Court, Thiruvalla, for recovery of money and value of gold ornaments from the respondent herein and his mother. The petitioner had also filed MC No.38/2011, before the Family Court, Thiruvalla seeking maintenance. Annexure-1 compromise decree dated 20.06.2014 was rendered by the Family Court, Thiruvalla in the Tr.P(C) : 290 of 2017 -:2:- above O.P. No.167/2011, based on the compromise that was arrived at between the parties. As per Annexure-1 compromise decree it was agreed by the parties that the respondent husband would settle 5 cents of properties each in favour of the two children of the spouses as gift deeds and further that the wife would give up her maintenance claims and that she would handover custody of the two children to the husband for three days each during Onam and X'mas holidays and for 10 days during the summer vacation etc. 4. It is stated that the petitioner along with two children are now residing with her parents in Chungathara, Nilambur, Malappuram District and the children are studying at Good Hope, English Medium School, Nilambur in 8[th] and 6[th] Standards respectively. The petitioner alleges that the respondent husband has not performed his part in Annexure-1 compromise decree. The petitioner, under the financial penurious, was constrained to file Annexure-3 O.P. No.96/2017, before the Family Court, Malappuram claiming past maintenance at the rate of Rs.6,000/- and Rs.5,000/each to the children. The petitioner had also filed Annexure-4, M.C. No.61/2017 before the Family Court, Malappuram seeking Tr.P(C) : 290 of 2017 -:3:- maintenance. 5. It is further stated that the respondent has now filed Annexure-5 execution petition, E.P. No.18/2017 in Annexure-1 O.P. No.167/2011 before the Family Court, Thiruvalla for executing Annexure-1 compromise decree regarding the custody of the children. It is this Annexure-5 execution petition which is sought to be transferred from Family Court, Thiruvalla to Family Court, Malappuram by the petitioner in as much as she finds it extremely difficult to travel all the way from Malappuram to attend the proceedings before the Family Court, Thiruvalla. 6. The respondent has filed statement of objections and he opposes the plea for transfer stating that he has fully complied with the terms and conditions in Annexure-1 compromise decree and he has gifted 5 cents each to the children as per Ext.R1(b). The condition to handover the custody of children has not been complied with by the petitioner with an intention to harass the him-the respondent/husband. 7. Now there are three litigative proceedings between the parties, out of which two matters (Annexures-3 & 4) are now pending Tr.P(C) : 290 of 2017 -:4:- before the Family Court, Malappuram and only Annexure-5, E.P. No.18/2017 in O.P. No.167 of 2011 is now pending on the files of Family Court, Thiruvalla. Whether the husband has complied with the terms and conditions in Annexure-1 compromise decree or not are all matters which are not the concern of this Court and those are to be examined by the execution court. The fact remains that out of the three litigative proceedings, two cases are pending before the Family Court, Malappuram and one is at Family Court, Thiruvalla. It is only fair that all the three proceedings are conducted before the same Family Court as otherwise the parties will have to conduct the litigations before two Family Courts. That apart, the petitioner is now staying with her parents and she finds it extremely difficult to travel all the way from Malappuram to Thiruvalla and hence made the plea for transfer of E.P. No.18/2017 in O.P. No.167/2011 from the Family Court Thiruvalla to Family Court, Malappuram. Moreover it is also to be noted that prayer sought for in Annexure-5 execution petition is grant of custody of children who are residing at Nilambur in Malappuram District. 8. In the judgments of the Apex Court as in _**Sumitha Singh v.**_ Tr.P(C) : 290 of 2017 -:5:- _**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. 9. Accordingly, it is ordered that E.P. No.18/2017 in O.P. No.167/2011 now pending on the file of the Family Court, Thiruvalla will stand transferred to file of the Family Court, Malappuram. The petitioner shall produce a certified copy of this order before the Family Court, Thiruvalla and upon such receipt, that Court shall transmit the case papers and records in relation to E.P. No.18/2017 in O.P. No.167/2011 to the Family Court, Malappuram. On receipt of the case papers, the Family Court, Malappuram shall issue notice to the party concerned and thereafter proceed with the matter in accordance with law. 10. Taking note of the submissions made by the parties regarding the inconvenience faced by them, it is ordered in the Tr.P(C) : 290 of 2017 -:6:- 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. However, it is made clear that the parties will have to appear before the Family Court at the time of mediation process, etc., and as and when specifically so directed by the Family Court. With these observations and directions, this Transfer Petition (Civil) stands finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ttb