Sreeja Sivan K V v. Jayakumar K.V

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 23[RD] DAY OF JUNE 2022 / 2ND ASHADHA, 1944 ``` ``` TR.P(C) NO. 52 OF 2022 ``` ``` IN OP(DIV) 759/2020 OF FAMILY COURT,ERNAKULAM ``` ## **`PETITIONER:`** ``` SREEJA SIVAN K V. AGED 35 YEARS D/O SIVAN KUNJIKKUDDY, RESIDING AT SIVA NIVAS, NEELSWARAM P O, KOTARAKKARA, KOLLAM DISTRICT, PIN-691505. ``` ``` BY ADVS. S.SREEKUMAR (KOLLAM) K.VIJAYAN ``` ## **`RESPONDENT:`** ``` JAYAKUMAR K.V AGED 48 YEARS S/O VISWANATHAN, RESIDING AT JAI NIVAS, CHITTOOR ROAD, AYYAPPANKAVU, ERNAKULAM-682018. ``` ``` BY ADV S.SUDHISH KUMAR ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` TR.P(C) NO. 52 OF 2022 2 ``` ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, seeking to transfer O.P No.759/2020 (Annexure A1) from the Family Court, Ernakulam to the Family Court, Kottarakara. 2. The petitioner’s case, in brief, in the memorandum of transfer petition is that, she is the wife of the respondent. They are issueless. The respondent has filed Annexure A1, seeking a decree of divorce. The petitioner is residing in her parental home at Kottarakara. It is more than 160 kms from Ernakulam. There is no person to chaperone her from Kottarakara to Ernakulam to contest Annexure A1. The petitioner has filed M.C. No.94/2020 (Annexure A2) before the Family Court, Kottarakara, seeking an order of maintenance. The petitioner would be put to great hardship and difficulty if Annexure A1 is prosecuted in Ernakulam. Hence, the transfer petition. 3. The transfer petition is opposed by the respondent, ``` TR.P(C) NO. 52 OF 2022 3 ``` who has filed a counter affidavit, inter alia, contending that the petitioner has spent a major portion of her life in Mumbai, Bangalore, Nagpur, and Hyderabad. Moreover, her parents are not suffering from any kind of illness, so she can have no difficulty in travelling to Ernakulam. The petitioner has filed a complaint under Section 498 A of the Indian Penal Code against the respondent and his family members before the Kottarakara Police and the matter is now pending before the Judicial First Class Magistrate Court, Kottarakara. The petitioner has alleged that the respondent has manhandled her. This Court had granted the respondent Annexure R(a) order of anticipatory bail. There is no necessity for the petitioner to travel to Ernakulam on all posting dates to contest Annexure A1. The respondent’s mother is a widow and is 75 years of age. There is no person to attend to her. The grounds alleged in the transfer petition are devoid of any merits. Hence, and the transfer petition may be dismissed. ``` TR.P(C) NO. 52 OF 2022 4 ``` 4. Heard; S.Sreekumar Kollam **,** the learned counsel appearing for the petitioner and Sri. S.Sudhish Kumar, the learned counsel appearing for the respondent. 5. The learned counsel appearing for the respondent places reliance on the decision of the Honourable Supreme Court in **Anindita Das v. Srijit Das** [(2006) 9 SCC 197], wherein the Honourable Supreme Court has held that since a large number of transfer petitions are filed by women, taking advantage of leniency, the same should not be entertained in a casual manner. 6. It is an undisputed fact that the petitioner has already filed M.C. No.94/2020 before the Family Court, Kottarakara, against the respondent, seeking an order of maintenance. The respondent does not dispute the fact that he is contesting Annexure A2 and has not sought for the transfer of proceeding. He has also admitted in his counter affidavit that, he stands chargesheeted for an offence under Section 498 A and is facing trial in C.C. No.197/2021 before ``` TR.P(C) NO. 52 OF 2022 5 ``` the Judicial First Class Magistrate Court, Kottarakara. His main defence is that, as the petitioner has spent a major portion of her life outside Kerala, she would have no difficulty to appear and contest Annexure A1 before the Family Court, Ernakulam. 7. 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 V. Shridhar Vishwanath Jagtap** [2016 KHC 6489] and **Santhini V. Vijaya Venkatesh** [2017 (5) KHC 48]. 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. 8. On a consideration of the pleadings and materials on record and the rival submissions made across the bar, it ``` TR.P(C) NO. 52 OF 2022 6 ``` is an admitted fact that the respondent is already appearing before the Courts at Kottarakara to defend Annexure A2 and C.C No.197/2021. Furthermore, on a comparison of the relative hardship, I am of the firm view that the convenience of the petitioner has to be given due preference, especially, since the respondent has not sought for the transfer of the above cases. Moreover, if Annexures A1 and A2 are consolidated and jointly tried, it would save precious judicial time and avoid conflict of decisions. Therefore, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure and order the transfer of O.P.No.759/2020. In the result, I allow the transfer petition as follows:(i) O.P No.759/2020 is transferred from the Family Court, Ernakulam to the Family Court, Kottarakara. (ii) The parties would be at liberty to move the Family Court, Kottarakara, for consolidation and joint trial of all the cases between them. ``` TR.P(C) NO. 52 OF 2022 7 ``` (iii) The Registry shall forward a copy of this order to the Family Court, Ernakulam with instructions to forthwith transmit the records in Annexure A1 to the Family Court, Kottarakara. (iv) The Family Court, Kottarakara shall, immediately on the receipt of the records in AnnexureA1, call the case along with M.C No.94/2020 Sd/- **C.S.DIAS, JUDGE** rmm/23.06.2022 ## **`TR.P(C) NO. 52 OF 2022 8`** ## **`APPENDIX OF TR.P(C) 52/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1 ``` ``` A TRUE PHOTOSTAT COPY OF THE OP(DIVORCE) NO.759/2020 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. ``` ``` Annexure A2THE TRUE COPY OF THE M C NO.94/2020 OF FAMILY COURT, KOTTARAKKARA. ``` ## RESPONDENT’S EXHIBIT EXHIBIT R(a) PHOTOSTAT COPY OF THE ANTICIPATORY BAIL ORDER IN BA NO.7945/2020 IN CRIME NO.3824/2020 OF KOTTARAKARA POLICE STATION.