Soorya Ganesh v. Roshan P.P.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ``` TR.P(C) NO. 489 OF 2022 OP 468/2021 OF FAMILY COURT, KALPETTA ``` ## **`PETITIONER/PETITIONER:`** ``` SOORYA GANESH, AGED 24 YEARS W/O ROSHAN P., TC NIVAS, VAYYIL KODISSERY PARAMBU, OLAVANNA, KOZHIKODE, NOW RESIDING GAYATHRI HOUSE, SANTHI NAGAR, ARATTUTHARA POST, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANADU DISTRICT -670645 ``` ``` BY ADVS. SHARAN SHAHIER RAKHY BABY SONY SOLOMON ``` ## **`RESPONDENT/RESPONDENT:`** ``` ROSHAN.P.P., AGED 32 YEARS S/O RAJAN, GAYATHRI HOUSE, SANTHI NAFGAR, ARATTU THARA POST, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANADU DISTRICT -670645 ``` ``` BY ADV V.RAMKUMAR NAMBIAR ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2023, ALONG WITH Tr.P(C).485/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` TR.P(C) Nos. 485 & 489 OF 2022 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 TR.P(C) NO. 485 OF 2022 ``` ``` OP 298/2021 OF FAMILY COURT, KALPETTA ``` ## **`PETITIONER/RESPONDENT:`** ``` SOORYA GANESH AGED 24 YEARS D/O.GANESH BABU, KONARI PERUMMAL, T.C.NIVAS, VAYIL KODISSERY PARAMBU, OLAVANNA P.O., KOZHIKODE - 673 019. ``` ``` BY ADVS. SHARAN SHAHIER RAKHY BABY SONY SOLOMON ``` ## **`RESPONDENT/PETITIONER:`** ``` ROSHAN P.P. AGED 32 YEARS S/O.RAJAN, POTTAKATTU PARAMBIL HOUSE, MARKETING MANAGER, GAYATHRI HOUSE, ARATTUTHARA P.O., MANANTHAVADY, WAYANAD - 670 645. ``` ``` BY ADV V.RAMKUMAR NAMBIAR ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2023, ALONG WITH Tr.P(C).489/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` TR.P(C) Nos. 485 & 489 OF 2022 ``` ``` 3 ``` ## **COMMON ORDER** As the transfer petitions are between the same parties, they have been disposed of by this common order. 2. The transfer petitions are filed by the wife against the husband to transfer O.P No.298/2021 and O.P No.468/2021 from the Family Court, Kalpetta to the Family Court, Kozhikode. For the sake of convenience, the Tr.P. (C)No.485/2022 is treated as the leading case. 3. The petitioner’s common case in the transfer petitions is that, she is the wife of the respondent. The marital relationship is irretrievably broken down. The respondent has filed O.P No.298/2021 against the petitioner, for a decree of divorce. The petitioner has filed O.P. No.468/2021 against the respondent, for a decree for restitution of conjugal rights. The petitioner is residing in ``` TR.P(C) Nos. 485 & 489 OF 2022 ``` ``` 4 ``` her parental home at Kozhikode. It would be difficult for her to travel all the way from Kozhikode to Kalpetta to contest the above two proceedings. Hence, the transfer petitions. 4. The respondent has filed a counter affidavit in both the transfer petitions denying the assertions in the transfer petitions. It is his case that the petitioner herself has filed O.P No.468/2021 before the Family Court, Kalpetta, showing the respondent’s residential address as her permanent address. Now, the petitioner cannot turn around and seek for the transfer of the proceedings. Moreover, the petitioner is working as a Physical Instructor in a school in Bangalore. Therefore, no inconvenience would be caused to the petitioner in contesting the proceedings before the Family Court, Kalpetta. Furthermore, the respondent has suffered a stroke and is suffering from coronary artery disease. He ## **`TR.P(C) Nos. 485 & 489 OF 2022`** ``` 5 ``` was admitted in hospital and advised rest. Hence, it would be difficult for him to travel from Kalpetta to Kozhikode, if the proceedings are transferred. Therefore, the transfer petition may be dismissed. 5. Heard; Sri.Sharan Shahier, the learned counsel appearing for the petitioner in both the transfer petitions and Sri.V.Ramkumar Nambiar, the learned counsel appearing for the respondent in both the transfer petitions. 6. The question is, whether the transfer petitions are to be allowed. 7. Indisputably, the petitioner and the respondent have both instituted separate proceedings before the Family Court, Kalpetta, as against each other. 8. Now, the petitioner’s case is that she is permanently residing in her parental home in Kozhikode. Therefore, it would be difficult for her to travel all the way from Kozhikode to Kalpetta, which is 76 kms on one side. ``` TR.P(C) Nos. 485 & 489 OF 2022 ``` ``` 6 ``` Moreover, there is no person to chaperone her to attend the proceedings before the Family Court, Kalpetta. 9. The respondent has refuted the allegations contending that the petitioner had herself filed O.P.No.468/2021 before the Family Court, Kalpetta, that too by showing the respondent’s address as the petitioner’s permanent address. Also, the petitioner is employed in a school in Bangalore as evidenced by Annexure R1(a) photograph. The respondent is suffering from artery disease and it would be difficult for him to travel to Kozhikode to contest the proceedings. 10. The law with respect to transfer of 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** [2002 KHC 1889], **Mona Aresh Goel V. Aresh Satya Goel** [2000 KHC 1835], **Vaishali Shridhar Jagtap** ``` TR.P(C) Nos. 485 & 489 OF 2022 ``` ``` 7 ``` **V. Shridhar Vishwanath Jagtap** [2016 KHC 6489], **Santhini V. Vijaya Venkatesh** [2017 (5) KHC 48] and **Aiswarya N.C.V. v. A.S. Saravana Karthik Sha** [2022 (5) KHC 185(SC)]. 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. 11. Going by the law laid down by the Honourable Supreme Court in the afore-cited decisions, it is nigh wellsettled that it is the convenience of the women that has to be given due preference and weightage. 12. The petitioner is a young lady aged 24 years. She has a case that there is no person to accompany her from Kozhikode to Kalpetta to contest the above two proceedings. 13. The respondent’s case is that he is suffering from artery disease and it would be difficult for him to travel ``` TR.P(C) Nos. 485 & 489 OF 2022 ``` ``` 8 ``` from Kalpetta to Kozhikode. 14. On an overall consideration of the rival pleadings and the law on the point, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure in favour of the petitioner by ordering the transfer of O.P Nos.468/2021 and 298/2021, so that the cases can be consolidated and jointly tried, which would save precious judicial time and avoid conflict of decisions, but by permitting the respondent to move the Family Court, Kozhikode and seek for dispensation of his personal appearance. In the result, I allow the transfer petitions as follows:- (i) Tr.P.(C) No.485/2022 is allowed by ordering the withdrawal and transfer of O.P No.298/2021 from the Family Court, Kalpetta to the Family Court, Kozhikode. (ii) Tr.P.(C) No.489/2022 is allowed by ordering the withdrawal and transfer of O.P No.468/2021 from the ``` TR.P(C) Nos. 485 & 489 OF 2022 ``` ``` 9 ``` Family Court, Kalpetta to the Family Court, Kozhikode. (iii) The parties would be at liberty to move the Family Court, Kozhikode and seek for the consolidation and joint trial of all the cases between them. (iv) The Registry shall forward a copy of this common order to the Family Court, Kalpetta with instructions to forthwith transmit the records in O.P Nos.468/2021 and 298/2021 to the Family Court, Kozhikode. (v) The Family Court, Kozhikode shall, immediately on the receipt of the records in the above two cases, issue notice to the parties for their appearance. (vi) The respondent would be at liberty to move the Family Court, Kozhikode and seek for the dispensation of his personal appearance, which shall be compassionately considered by the Family Court, Kozhikode. Sd/- ## **C.S.DIAS, JUDGE** rmm/7/3/2023 ## **`TR.P(C) Nos. 485 & 489 OF 2022`** ## **`10`** ## **`APPENDIX OF TR.P(C) 485/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1A TRUE COPY OF THE OP 298/2021 FILED BEFORE FAMILY COURT, KALPETTA. ``` - `ANNEXURE 2 A TRUE COPY OF THE AADHAR CARD NO.961803295791 OF THE PETITIONER` ``` RESPONDENT'S ANNEXURES ``` - `ANNEXURE R(1) A A TRUE COPY OF THE PHOTOGRAPH OF THE PETITIONER AND OTHERS INDICATING THE NAME OF THE SCHOOL AND THE SPORTS UNIFORM OF THE SAID SCHOOL PUBLISHED IN THE SOCIAL MEDIA BY THE PETITIONER` - `ANNEXURE R(1)B TRUE COPY OF THE DISCHARGE SUMMARY OF THE RESPONDENT FROM THE DEPARTMENT OF CARDIOLOGY, APOLLO BGS HOSPITALS, MYSORE` - `ANNEXURE R(1)C TRUE COPY OF THE DISCHARGE SUMMARY OF THE RESPONDENT FROM THE DEPARTMENT OF NEUROLOGY, APOLLO BGS HOSPITALS, MYSORE` - `ANNEXURE R(1)D TRUE COPY OF THE DISCHARGE SUMMARY OF THE RESPONDENT FROM THE DEPARTMENT OF CARDIOLOGY, APOLLO BGS HOSPITALS, MYSORE` - `ANNEXURE R(1)E TRUE COPY OF THE CERTIFICATE ISSUED BY DR. SOMANATH VASUDEVA, CONSULTANT NEUROLOGIST, APOLLO BGS HOSPITALS, MYSORE DATED 21.11.2022` ``` TR.P(C) Nos. 485 & 489 OF 2022 ``` ## **`11`** ## **`APPENDIX OF TR.P(C) 489/2022`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 1A TRUE COPY OF THE OP 468/2021 FILED BEFORE FAMILY COURT, KALPETTA. ``` ``` ANNEXURE 2A TRUE COPY OF THE AADHAR CARD NO.961803295791 OF THE PETITIONER ``` ``` RESPONDENT'S ANNEXURES ``` ``` ANNEXURE R(1) AA TRUE COPY OF THE PHOTOGRAPH OF THE PETITIONER AND OTHERS INDICATING THE NAME OF THE SCHOOL AND THE SPORTS UNIFORM OF THE SAID SCHOOL PUBLISHED IN THE SOCIAL MEDIA BY THE PETITIONER ``` ``` ANNEXURE R(1)BTRUE COPY OF THE DISCHARGE SUMMARY OF THE RESPONDENT FROM THE DEPARTMENT OF CARDIOLOGY, APOLLO BGS HOSPITALS, MYSORE ``` ``` ANNEXURE R(1)CTRUE COPY OF THE DISCHARGE SUMMARY OF THE RESPONDENT FROM THE DEPARTMENT OF NEUROLOGY, APOLLO BGS HOSPITALS, MYSORE ``` ``` ANNEXURE R(1)DTRUE COPY OF THE DISCHARGE SUMMARY OF THE RESPONDENT FROM THE DEPARTMENT OF CARDIOLOGY, APOLLO BGS HOSPITALS, MYSORE ``` ``` ANNEXURE R(1)ETRUE COPY OF THE CERTIFICATE ISSUED BY DR. SOMANATH VASUDEVA, CONSULTANT NEUROLOGIST, APOLLO BGS HOSPITALS, MYSORE DATED 21.11.2022 ```