Sreela S.G. v. Ramakrishnan Pillai

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939** **Tr.P(C).No. 43 of 2018** **TO TRANSFER OP.NO. 1948/2017 of FAMILY COURT,THIRUVANANTHAPURAM TO THE FAMILY COURT, KOLLAM.** **--------** **PETITIONER(S)** **-------------** **SREELA S.G., AGED 47 YEARS, W/O.RAMAKRISHNA PILLAI, SREENILAYAM, MYLAKKAD PO, ADICHANALLOOR VILLAGE, KOLLAM-691571.** **BY ADV.SRI.M.RAJESH** **RESPONDENT(S):** **-------------** **RAMAKRISHNA PILLAI, AGED 51 YEARS, S/O.R.JANARDHANAN PILLAI, LALITHASREE, VAYALIKADA, VATTIYOORKAVU PO, THIRUVANANTHAPURAM-695013.** **BY ADVS. SRI.T.I.UNNIRAJA SRI.S.G.SREEKANTH** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** ## **Tr.P(C).No. 43 of 2018 () -------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES -----------------------ANNEXURE I THE TRUE COPY OF THE ORIGINAL PETITION NO.1948/17 OF FAMILY COURT, THIRUVANANTHAPURAM. ANNEXURE 2 THE TRUE COPY OF THE PETITION FILED AS O.P. NO.941/2016 IN FAMILY COURT, CHAVARA. ANNEXURE 3 THE TRUE COPY OF THE PETITION FILED AS O.P.NO.322/2016 BEFORE FAMILY COURT, KOLLAM. ANNEXURE 4 THE TRUE COPY OF THE PETITION FILED AS MC NO.67/2016 IN FAMILY COURT, KOLLAM. ANNEXURE 5 THE TRUE COPY OF JUDGMENT OF HON'BLE HIGH COURT IN TR.P(C)NO.685/2015.** **RESPONDENT(S)' ANNEXURES - NIL ------------------------------** **/TRUE COPY/ PS TO JUDGE TS 14/03/2018** ## **ALEXANDER THOMAS, J.** ================== Tr.P(C).No. 43 of 2018 ================== Dated this the 20[th] day of February, 2018 **O R D E R** The prayer in this Transfer Petition (Civil) as as follows: _“......... to transfer O.P.No. 1948/2017 pending before the Family Court, Thiruvananthapuram to Family Court, Kollam.”_ 2. Heard Sri..M.Rajesh, learned counsel appearing for the petitioner and Sri.T.I.Unni Raja, learned counsel appearing for the respondent. 3. The petitioner herein is the wife of the petitioner herein. Differences of opinion between the parties have led to matrimonial dispute, which in turn have led to the institution of litigative proceedings between these spouses. 4. The present Anx.1 O.P.No.1948/2017 seeking recovery of money has been filed by the respondent (husband) before the Family Court, Thiruvananthapuram. It is this petition that is sought to be transferred to the Family Court, Kollam. The petitioner would contend that she is now residing at Mylakkadu, Adichanalloor, in Kollam District and that she finds it extremely difficult to travel all the way from her residential locality in Kollam district to attend the Family Court proceedings in relation to O.P.No. 1948/2017 before the Family Court, Thiruvananthapuram. 5. This plea for transfer is opposed by the respondent on the ground that it would cause serious hardships to him inasmuch as he is Tr.P(C).43/18 - : 2 :- residing in Vattiyurkavu in Thiruvananthapuram District, etc. 6. Now it will be pertinent to note the other litigative proceedings between these spouses. Anx.2 O.P.No. 941/2016 has been filed by the petitioner (wife) for recovery of gold ornaments before the Family Court, Chavara in Kollam District. Anx.4 Maintenance Case, M.C.No.67/2016 has been filed by the petitioner (wife) before the Family Court, Kollam, claiming maintenance. Earlier the respondent (husband) had filed O.P.No. 937/2015 before the Family Court, Nedumangad, seeking restitution of conjugal rights. The petitioner (wife) had approached this Court by filing Tr.P(C).No. 685/2015 seeking transfer of the said O.P.No.937/2015 then pending before the Family Court, Nedumangad, to the Family Court, Kollam. This Court as per Anx. 5 judgment dated 3.2.2016 had allowed the prayer in Tr.P(C).No. 685/2015 filed by the petitioner herein and thereby it was ordered that O.P.No.937/2015 on the file of the Family Court, Nedumangad, will stand transferred to the Family Court, Kollam. It is now stated that the said matter thereafter has been renumbered as O.P.No. 322/2016 by the Family Court, Kollam. Thus from the abovesaid averments and materials on record, it can be seen that as of now there are four litigative proceedings between the spouses, out of which two are now pending before the Family Court, Kollam and one before the Family Court, Chavara. The petitioner's counsel would submit that the petitioner has also been advised to file a separate Transfer Petition (Civil) before this Court for Tr.P(C).43/18 - : 3 :- transfer of Anx.2 O.P.No. 941/2016 from the file of the Family Court, Chavara, Kollam District, to the Family Court, Kollam. It is pointed out that the case in Anx. 2 was earlier filed before the Family Court, Kollam, and after the establishment of the Family Court at Chavara, the said case was transferred on the administrative side to the Family Court, Kollam, etc. 7. Sri.T.I.Unni Raja, learned counsel appearing for the respondent, submits that Annexure-I Original Petition can never be considered as a family dispute and the said dispute is only in relation to money and has nothing to do with the family dispute and that it cannot be entertained by a Family Court. Further it is submitted that the whole loan transaction has taken place at Thiruvananthapuram and so only the court at Thiruvananthapuram has territorial jurisdiction therein to entertain and adjudicate the matter and therefore, the present prayer made by the petitioner-wife to transfer the case from the Family Court, Thiruvananthapuram to Family Court, Kollam, is not maintainable. It is also stated that if the plea for transfer is allowed, it will cause great hardships and difficulties to the respondent to attend to the Family Court proceedings at Kollam. The clear fact is that it is the respondent-husband himself who has filed Annexure-I Original Petition before the Family Court, Thiruvananthapuram, and therefore, the present contentions made by the respondent appears to have been made only for the purpose of rejecting this Transfer Petition. Further it could be seen that the averments in Annexure-I Original Petition would disclose that the entire disputes arose out of the circumstances arising out of the matrimonial disputes between the spouses. But, for the marital relationship Tr.P(C).43/18 - : 4 :- between the spouses, the incidents which are alleged in Annexure-I Original Petition would not have arisen and the entire transactions have occurred between the parties by virtue of the relationship as husband and wife. As per clause (d) of Explanation appended to Section 7(1) of the Family Courts Act, 1984, a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship would come within the jurisdiction of the Family Court. The scope and ambit of the expression “in circumstances arising out of a marital relationship” is a dispute occurring in clause (d) of Explanation appended to Section 7(1) of the Family Courts Act which has been dealt with in detail in a catena of rulings of this Court in _**Leby Issac v, Leena.M.Ninan**_ reported in _2005 (3) KLT 665_ , **Suprabha v. Sivaraman** reported in (2006(1) KLT 712) reported in 2013(4) KLT, _**Syamaladevi v. Saraladevi**_ reported in (2009 (1) KLT 892), _**Vasumathi v. Valsan**_ reported in 2011 (3) KLT 638, _**Anil Kumar.K.B. v. Sheela N.S. and others**_ reported in (2011 (4) KLT 120), _**Krishna Moorthy v. Soumya Krishnan**_ reported in _2015 (4) KLT 471_ , _**Janaki Amma v. Renuka Sadanandan**_ reported in _2016 (1) KLT 563, etc_ . 8. A Division Bench of this Court in the judgment in _**Leby Issac v. Leena.M.Ninan**_ reported in _2005 (3) KLT 665_ more particularly in paragraphs 10, 13, 14, etc. thereof has held if the court finds that a ‘petition’ is filed before a Family Court for an ‘order of injunction in circumstances arising out a matrimonial relationship’, such petition will be maintainable before a Family Court. The court has to firstly confirm from pleadings and other materials available in a case that a marital relationship is involved in the case. Secondly, the court has to consider Tr.P(C).43/18 - : 5 :- whether the petition discloses existence of any circumstances arising out of marital relationship based on which relief in the petition is moulded. It has then to confirm whether relief sought for in the petition is either ‘injunction; or other ‘order’. On consideration of the above facts, if the court is satisfied that the case instituted before the court is a petition or “proceeding is for an order or injunction in circumstances arising out a marital relationship”, the Family Court can exercise jurisdiction to entertain and adjudicate such petition. So ‘circumstances’ in relation to a marital relationship will be those particulars which closely precedes, surrounds, accompanies and follows a marital relationship. That means, primarily those can be the marriage itself and the surrounding occurrences in connection with marriage. The main requirement is that such ‘circumstances’ must have a direct bearing on, since the marriage precedes, the existence or origin of a ‘marital relationship’. ‘Circumstances’ arising out of a marital relationship are therefore, occurrences or things which stand around or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or clarify the principal event of marriage or marital relationship. The expression ‘in circumstances arising out of marital relationship’ means not only those occurrences which transpired during marital life, but those also include such circumstances which led to the marriage, which developed thereafter, which took place during marital life, which resulted in breaking down of marriage and also those which “closely” followed as a consequence of all these. If the intention of legislature was to take in only those occurrences which take place during a ‘marital relationship’, there was no necessity to use the word ‘circumstances’ in explanation (d) to Section 7(1) of Tr.P(C).43/18 - : 6 :- the Act. The same purpose could have been achieved if explanation (d) is worded without the term ‘circumstances’. So, the inclusion of word ‘circumstances’ in the relevant provision is quite significant and it must have been done to include all such circumstances surrounding, preceding and closely following a marital relationship, that is the principal event of marriage and eventualities surrounding the same. 9. Further the Division Bench of this Court in the judgment in _**Janaki Amma v. Renuka Sadanandan**_ reported in _2016(1) KLT 563_ , more particularly in paragraph 16 thereof, has also held that while deciding the question as to whether it is a suit or a proceedings instituted seeking an order of injunction in the circumstances arising out of the marital relationship, is the cause of the lis itself and not the parties to the lis. Prime consideration should be as to whether the cause of the lis has got any bearing with the marital relationship and an objective assessment should be made as to whether the cause has got any stem from the circumstances arising out of the marital relationship. In other words, whether the cause should have been existed but for the marital relationship, shall be the basis of the assessment. If the cause of action is emerging out of any circumstances related to the matrimonial relationship and the same could not have existed independently, then the suit can be maintained before the same Family Court, and it will fall under Clause (d) of Explanation to Section 7(1) of the Act. 10. A bare reading of Annexure-I Original Petition filed by none other than the respondent-husband would make it clear that the petitioner therein (husband) and the respondent therein (wife) were living together as husband and Tr.P(C).43/18 - : 7 :- wife and that the alleged monetary transaction between the parties which in turn settled on the part of the wife to the husband and it is this monetary liability that is sought to be recovered as per the prayers in that Original Petition. Therefore, it is crystal clear that the plaint averments in Annexure-I Original Petition arise in respect of the circumstances which arose out of the marital relationship between the parties therein. So, such a petition could have been filed in view of the provisions contained in Section 7 of the Family Courts Act, which confers jurisdiction on the Family Court and Section 8 of the Family Courts Act, which excludes jurisdiction of civil courts. As regards the second contention raised by the respondent -husband that this Court cannot exercise the powers under Section 24 of the C.P.C. to transfer the case from a court having territorial jurisdiction is also untenable. It has been held by this Court in the decision in _**Sherly v. Sukumari Amma**_ reported in _**2011(3) KLT 200**_ that it is not necessary that the court from which the case is to be transferred must have territorial jurisdiction to try the suit and even if the court where the suit is pending has no territorial jurisdiction to try the suit, the case can be transferred to a court competent to try the subject matter of the suit. It has also been held that the pre-requisite for transfer to a court is that the transferee court must have competence to try the subject matter of the suit and the competence spoken to in Section 24 need not relate to territorial jurisdiction, but the court must have jurisdiction over the subject matter of the case. The third contention of the respondent is based on the difficulty caused to him if the plea for transfer is allowed. The said difficulty expressed on behalf of the respondent could be alleviated by issuing necessary directions in the matter of grant of personal Tr.P(C).43/18 - : 8 :- exemption. So all the objections of the respondent (husband) are liable to be overruled and it is so accordingly ordered. 11. Since three out of the four litigative proceedings between the spouses, are now pending before the Family Courts, in Kollam district, it is only in the best interests of both that all the matters are being prosecuted before the same court, so that the parties will have the benefit of well coordinated litigative management. The difficulties expressed on behalf of the respondent could be alleviated by issuing necessary directions in the matter of personal exemption. 12. It it has been held by the Apex Court in _**Sumitha Singh v. 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. 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. 13. In the light of the abovesaid factual aspects and in the light of the aforecited legal position settled by the Apex Court, this Court is inclined to consider the present plea for transfer. Accordingly it is ordered that that Anx.1 O.P.No.1948/2017 now pending on the file of the Thiruvananthapuram, will stand transferred to the Family Court, Kollam. Tr.P(C).43/18 - : 9 :- The petitioner will produce a certified copy of this order before the Family Court, Thiruvananthapuram, without further delay. Upon receipt of the copy of the order, the Family Court, Thiruvananthapuram, will take steps to ensure that the case papers and case records in relation to Anx.1 O.P.No.1948/2017 pending on the file of that court are transmitted to the Family Court at Kollam. After receiving the case papers and case records in relation to Anx.1 O.P.No.1948/2017, the Family Court at Kollam, will issue notices to both parties and proceed further with the matter, in accordance with law. 14. In order to alleviate the difficulties of the parties for personally attending before the Family Court, it is ordered in the interest of justice that it will be open to both parties to file appropriate applications for exemption from personal appearance before the Family Court, upon which, the said request may be considered favourably, provided the parties are represented through Advocates. However, it is made clear that the parties will have to appear before the Family Court at the time of counselling and mediation process, etc., and as and when specifically so directed by the Family Court. With these observations and directions, the aforecaptioned Transfer Petition (Civil) stands finally disposed of. Sd/csl/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge Tr.P(C).43/18 - : 10 :-