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High Court of KeralaSingle JudgeTransfer petition allowed; OP 779/2021 to be tr...

Soumya T.P. v. Niju K. Rajan

Case / Petition Number:Tr.P(C) No.29 of 2022
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2022-05-31
Court Decision / Holding
The transfer petition is allowed; OP 779/2021 is transferred from the Family Court, Muvattupuzha to the Family Court, Kannur. Registry to transmit the records; if the respondent has grievance regarding enforcement of the mediation agreement, he may seek enforcement in the competent court. Parties to appear before the Family Court, Kannur on 16.06.2022.
Final Disposition
Transfer petition allowed; OP 779/2021 to be transferred from Muvattupuzha to Kannur; records to be transmitted; appearance fixed on 16.06.2022; mediation-enforcement avenues open to respondent if issues arise.

Parties to the Case

Appellants / Petitioners

  • Soumya T.P

Respondents

  • Niju K. Rajan

Legal Representation & Advocates

Counsels for Petitioners

  • • M. Sasindran
  • • P.K. Subhash

Counsels for Respondents

  • • Bimala Baby
  • • Nikita Tressy George

Case Synopsis & Summary

This High Court of Kerala (Ernakulam) heard Transfer of OP 779/2021 from the Family Court, Muvattupuzha to the Family Court at Kannur under Sec. 24 CPC. The petitioner, Soumya T.P., claims that her husband has filed OP 779/2021 seeking recovery of money and gold ornaments and for compensation, while she has already instituted OPs 1294/2021 (past maintenance) and 1295/2021 (custody) before the Family Court, Kannur. She is unemployed and resides with her parents at Payyannur, Kannur district; the distance to Muvattupuzha exceeds 300 kilometers, causing immense hardship should she contest the case there. The respondent opposes the transfer, contending the petitioner violated mediation terms in Annexure AIII and has not provided interim custody; however, Annexures AII and AIII are pending before Kannur, and the petitioner and her child reside within Kannur, making Kannur the more convenient forum for disposition of the custody matter. The court invokes Sec.9 of the Guardian and Wards Act, 1890, confirming Kannur as having jurisdiction to entertain custody petitions, and cites Supreme Court authorities (Sumitha Sing; Mona Aresh Goel; Vaishali Shridhar Jagtap; Santhini Vijaya Venkatesh; Valsal Nisha) emphasizing the welfare of women and children as the guiding criterion in transfer decisions. After considering the facts, the court concludes that transfer will better serve the petitioner and child, exercises its discretionary power under Sec.24 CPC, and allows the transfer, directing records to be transmitted to Kannur and scheduling appearance on 16.06.2022.

Provisions of Law Cited

Section 24 of the Code of Civil Procedure, 1908 (CPC)Section 9 of the Guardian and Wards Act, 1890

Legal Doctrines & Maxims

  • res integra
  • Convenience of the woman and child as the governing criterion in transfer of matrimonial disputes

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner sought transfer under Section 24 CPC primarily on grounds of substantial hardship due to distance (over 300 km) between Payneyannur, Kannur and Muvattupuzha, her unemployment, and her residence with her parents. She argued Kannur has ongoing proceedings (AII, AIII) and custody matters, making Kannur the appropriate forum; Sec. 9 of the Guardian and Wards Act vests custody jurisdiction there; Supreme Court decisions (Sumitha Sing; Mona Aresh Goel; Vaishali Shridhar Jagtap; Santhini Vijaya Venkatesh; Valsal Nisha) emphasize the welfare of the woman and child and convenience as primary considerations in transfer decisions; thus, transfer would substantially reduce hardship and promote welfare. The petitioner urged the Court to exercise its discretionary power under Sec.24 CPC in favor of convenience and welfare.

Contentions of Respondents

The respondent opposed transfer on the ground that the petitioner violated the mediation agreement (Annexure AIII) and did not provide interim custody to the child; however, it is noted that Annexures AII and AIII are pending before Kannur, and the petitioner and child reside there; thus Kannur is more convenient for the custody petitions; the respondent contends that transfer should not be granted pending resolution of mediation terms and in light of potential harassment.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Sumitha Sing v. Kumar Sanjay and another(2001) 10 SCC 41PositiveCited to support that the convenience of the woman and child should govern transfer decisions.
Mona Aresh Goel v. Aresh Satya Goel(2000) 9 SCC 255PositiveCited for the principle that transfer should be guided by welfare and convenience of wife and child.
Vaishali Shridhar Jagtap v. Shridhar Vishwanath JagtapAIR 2016 SC 3584PositiveSupports welfare-oriented transfer, focusing on convenience for the family.
Santhini V. Vijaya Venkatesh(2017) 4 KLT 415 (SC)PositiveAffirms welfare-centric approach for transfer in matrimonial disputes.
Valsal Nisha v. Rajesh Soman Nair(2020) 8 KLR 475PositiveReiterates convenience/welfare emphasis in transfer orders.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 31[ST] DAY OF MAY 2022 / 10TH JYAISHTA, 1944 TR.P(C) NO. 29 OF 2022 ``` ``` TRANSFER OF OP 779/2021 OF FAMILY COURT, MUVATTUPUZHA TO THE FAMILY COURT, KANNUR. ``` ## **`PETITIONER/S:`** ``` SOUMYA T.P AGED 34 YEARS D/O. CHANDHANAKUNJI, AKKALATH HOUSE, VELLOR POST, PAYYANNUR, KANNUR DISTRICT 670 307. BY ADVS. M.SASINDRAN P.K.SUBHASH ``` ## **`RESPONDENT/S:`** ``` NIJU K.RAJAN, AGED 37 YEARS S/O. RAJAN.K.K, KANDOTHUMOOLAYI HOUSE, KANINADU POST, PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT 682 310. BY ADVS. BIMALA BABY NIKITTA TRESSY GEORGE ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Tr.P(C) No.29 of 2022 ## **C.S DIAS,J.** **--------------------------Tr.P(C) No.29 of 2022 ----------------------------Dated this the 31[st] day of May, 2022.** ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure seeking to transfer O.P No.779/2021 (Annexure A1) from the Family Court, Muvattupuzha to the Family Court, Kannur. 2. The petitioner’s case in brief, in the memorandum of transfer petition is that, the respondent – her husband – has filed Annexure A1, seeking for return of money and gold ornaments and also for compensation. The petitioner has already filed OP 1294/2021 (Annexure AII) and OP 1295/2021 (Annexure AIII) before the Family Court, Kannur, seeking past maintenance for herself and her child and for permanent custody of the child, respectively. The petitioner is unemployed. She is residing with her parents within the jurisdiction of the Family Court, Kannur. The distance between her 3 Tr.P(C) No.29 of 2022 residence and the Family Court, Muvattupuzha is more than 300 kilometers. The respondent has filed Annexure A1 just to harass her. The petitioner would be put to severe difficulty and hardship if she is to contest Annexure A1 before the Family Court, Muvattupuzha. Hence, the transfer petition. 3. Heard; Sri.M.Sasindran, the learned counsel appearing for the petitioner and Smt.Bimala Baby, the learned counsel appearing for the respondent. 4. Sri.M.Sasindran reiterated the contentions in the transfer petition and sought for transfer of Annexure A1 from the Family Court, Muvattupuzha to the Family Court, Kannur. 5. Smt.Bimala Baby opposed the transfer petition on the ground that the petitioner has violated the conditions in the mediation agreement entered into between the parties in Annexure AIII proceeding. According to her, the petitioner is not providing interim 4 ## Tr.P(C) No.29 of 2022 custody of her child to the respondent. Therefore, the transfer petition may be dismissed. 6. It is on record that Annexures AII and AIII proceedings, filed by the petitioner against the respondent, are pending before the Family Court, Kannur. The respondent has not sought for transfer of the above proceedings. Therefore, necessarily he has to appear before the Family Court, Kannur and contest the same. On the other hand, the petitioner and her six year old son are residing at Payyannur, Kannur, within the jurisdiction of the Family Court, Kannur. 7. In view of Sec.9 of the Guardian and Wards Act, 1890, it is the Family Court, Kannur, which has the jurisdiction to entertain a petition for custody of the child. Therefore, I find that the petitioner has made out a case for the transfer of Annexure A1 from the Family Court, Muvattupuzha to the Family Court, Kannur. 8. The law in respect of transfer of proceedings, particularly in matrimonial disputes, is no longer res- 5 Tr.P(C) No.29 of 2022 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)] **Valsal Nisha v. Rajesh Soman Nair** [2020(8) KLR 475] wherein it is 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 uncontroverted averments in the memorandum of transfer petition, particularly the fact that the petitioner and the child are residing at Kannur and Annexures AII and AIII are pending before the Family Court, Kannur, I am of the definite view that Annexure A1 is to be transferred from the Family Court, Muvattupuzha to the Family Court, Kannur. 6 Tr.P(C) No.29 of 2022 10. In the totality of the facts and circumstances of the case, the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am satisfied that the discretionary powers of this Court under Section 24 of the Code of Civil Procedure is to be exercised. In the result, I allow the transfer petition by ordering the transfer of O.P. 779/2021 from the Family Court, Muvattupuzha to the Family Court, Kannur. The Registry shall forward a copy of this judgment to the Family Court, Muvattupuzha, with instructions to forthwith transmit the records in O.P.No.779/2021 to the Family Court, Kannur. Needless to mention that if the respondent has any grievance regarding the noncompliance of the terms and conditions of the mediation agreement entered into between the parties in Annexure AIII proceedings, the respondent would be at liberty to move the competent Court for enforcement of the mediation agreement. The parties shall appear before 7 Tr.P(C) No.29 of 2022 the Family Court, Kannur either in person or through their Counsel on 16.6.2022. sd/- Sks/31.5.2022 **C.S.DIAS, JUDGE** 8 Tr.P(C) No.29 of 2022 ## **`APPENDIX OF TR.P(C) 29/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE COPY OF THE O.P. NO. 779/2021 FILED BY THE RESPONDENT DATED 26.10.2021 BEFORE THE FAMILY COURT, MUVATTUPUZHA. Annexure AIITRUE COPY OF THE O.P. NO. 1294/2021 FILED BY THE PETITIONER NOVEMBER 2021 BEFORE THE FAMILY COURT, KANNUR. Annexure A1IITRUE COPY OF THE O.P. NO. 1295/2021 FILED BY THE PETITIONER DATED NOVEMBER 2021 BEFORE THE FAMILY COURT, KANNUR. ```