Thrill Merin Mathew v. M. Philip Chandy

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 ``` ## `TR.P(C) NO. 85 OF 2021` ``` IN OPDIV 1102/2020 OF FAMILY COURT,TRIVANDRUM ``` ## `PETITIONER/RESPONDENT:` ``` THRILL MERIN MATHEW, AGED 34 YEARS, D/O. RAJAN T. MATHEW, RESIDING AT THERADIYIL HOUSE, PARIYARAM P.O. MALLAPPALLY, PATHANAMTHITTA 689 585. ``` ``` BY ADVS.P.HARIDAS SRI.BIJU HARIHARAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS ``` ## `RESPONDENT/PETITIONER:` ``` M. PHILIP CHANDY, AGED 39 YEARS, S/O.M.P. CHRISTIAN, RESIDING AT MULAMOOTTIL HOUSE, GV-125, TC 11/704, DIVISION OFFICE ROAD, VIKAS BHAVAN P.O. PG JUNCTION, THIRUVANANTHAPURAM 695 033. ``` ``` BY ADV GOPAKUMAR R.THALIYAL ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.08.2022, ALONG WITH Tr.P(C).340/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:2:- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 ``` ## `TR.P(C) NO. 340 OF 2022` ``` IN OP 306/2020 OF FAMILY COURT, THIRUVALLA ``` ## `PETITIONER/RESPONDENTS 1 & 3:` ``` 1PHILIP CHANDY M AGED 40 YEARS S/O. LATE M.P. CHANDY, MULAMOOTTIL HOUSE, T.C. 11/704, GV-125, DIVISION OFFICE ROAD, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695013. 2MARIAM CHANDY, AGED 71 YEARS W/O. LATE M.P. CHANDY, MULAMOOTTIL HOUSE, T.C. 11/704, GV-125, DIVISION OFFICE ROAD, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695013. ``` ``` BY ADVS.GOPAKUMAR R.THALIYAL N.KUTTAPPAN THAZHASSERY R.B.BALACHANDRAN ``` ## `RESPONDENT/PETITIONER:` ``` THRILL MERIN MATHEW, W/O. PHILIP CHANDY M., THERADIYIL HOUSE, MALLAPPALLY WEST, PARIYARAM P.O., MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT-6895585. ``` ``` BY ADVS.P.HARIDAS BIJU HARIHARAN SHIJIMOL M.MATHEW P.C.SHIJIN RISHIKESH HARIDAS ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.08.2022, ALONG WITH Tr.P(C).85/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:3:- ``` Dated this the 29[th] day of August,2022 ## **C O M M O N O R D E R** As the transfer petitions arise out of the marital disputes between the ‘Thrill Merin Mathew’(wife) and the ‘M. Philip Chandy’(husband), they are being disposed of by this common order. 2. Tr.P.(C)No.85/2021 is filed by the wife to transfer O.P.(Div.)No.1102/2020 filed by the husband against the wife from the Family Court, Thiruvananthapuram, to the Family Court, Thiruvalla and Tr.P.(C)No.340/2022 is filed by the husband and his mother against the wife, to transfer O.P.No.306/2020 from the Family Court, Thiruvalla to the Family Court, Thiruvananthapuram. The parties and pleadings are, for the sake of convenience, and ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:4:- ``` wherever the context so requires, referred to as per the status in Tr.P.(C)No.340/2022, as it is the recent transfer petition with the complete details regarding the litigation between the parties. The husband and his mother are referred to as ‘petitioners’ and the wife as ‘respondent’. 3. The common case of the petitioners in Tr.P. (C)No.340/2022 and their counter affidavit in Tr.P. (C)No.85/2021 is that the respondent was married to the first petitioner on 14.01.2013. They have a child born in the wedlock. Their martial relationship is estranged. The respondent has filed M.C.No.24/2019 before the Judicial First Class Magistrate Court-IV, Thiruvananthapuram, against the first petitioner, his parents and sister, invoking the provisions of the Protection of Women from Domestic Violence Act, 2005. M.C.No.24/2019 was allowed and both the first petitioner and the respondent have filed Crl.Appeal ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:5:- ``` Nos.78 & 64/2020, respectively, before the Court of Session, Thiruvananthapuram, which are pending consideration. The first petitioner’s father has filed O.S.Nos.799 & 376/2020, before the Court of the Munsiff, Thiruvananthapuram, against the respondent. The first petitioner has filed O.P.(Div) No.1102/2020 against the petitioner before the Family Court, Thiruvananthapuram, for a decree of divorce. It is also on record that C.C.No.219/2020 is pending before the Judicial First Class Magistrate Court-III, Thiruvananthapuram, against the respondent and others, for the offences punishable under Sections 451, 294(b), 323 and 34 of the Indian Penal Code, 1808(in short, ‘IPC’). The respondent has also filed a complaint against the first petitioner before the Museum Police Station under Section 498A of the IPC and Section 31 of the Protection of Women from Domestic Violence Act and the police have registered Crime No.33/2020 and ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:6:- ``` the First Information Report[FIR] has been forwarded to the Chief Judicial Magistrate Court, Thiruvananthapuram. During the pendency of these cases, the respondent has filed O.P.No.306/2020 against the petitioners before the Family Court, Thiruvalla, seeking a decree for return of money and gold ornaments. The respondent has all throughtout being contesting the cases in the courts at Thiruvananthapuram. Therefore, no inconvenience would be caused to her in O.P.No.306/2020 being transferred. Moreover, the second petitioner is 71 years of age. The respondent has impleaded the petitioners and their other relatives in the other cases. Therefore, it is their convenience that has to be given due preference. Hence, Tr.P.(C)No.340/2022 may be allowed. 4. The wife has on the other hand contended in Tr.P.(C)No.85/2021 and her counter affidavit to Tr.P. ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:7:- ``` (C)No.340/2022 that it would be difficult for her to contest O.P.(Div)No.1102/2020 before the Family Court, Thiruvananthapuram. Therefore, the case may be transferred 5. On a consideration of the rival pleadings and materials on record, it can be gathered that there are six cases between the parties in the courts in Thiruvananthapuram. It is pertinent, it was at the instance of the respondent that M.C.No.24 2019, Crl.Appeal Nos.64/2020 and C.C.No.219/2020 were filed before the courts at Thiruvananthapuram. She has been all through out been contesting the proceedings at the courts in Thiruvananthapuram. It is later that she has filed O.P.No.306/2020 before the Family Court, Thiruvalla, against the first petitioner and his 71 year old mother – the second petitioner – seeking a decree for return of money and gold ornaments. In the above background, I am not inclined ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:8:- ``` to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure, 1908(in short, ‘Act’), in favour of the respondent, instead, for the purpose of consolidation and joint trial of all the cases between the parties, I am of the view that O.P.No.306/2020 is to be transferred from the Family court, Thiruvalla, to the Family Court, Thiruvananthapuram, which would save precious judicial time and avoid conflict of decisions. 6. The Division Bench of this Court in **Vidya Mundekkat v. Akhilesh Jayaram** [2021(6) KHC 506] has categorically held, that there is no invariable rule that, whenever a wife makes a request pointing out the inconvenience that this Court is obliged to exercise its discretionary power under Section 24 of the CPC. 7. On an overall consideration of the pleadings and materials on record in both the transfer petitions, and taking into account the fact that six proceedings ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:9:- ``` are pending before the courts at Thiruvananthapuram, I am of the view that Tr.P.(C)No.340/2022 is to be allowed and Tr.P.(C)No.85/2021 is to dismissed. In the result, I dispose of the transfer petitions as follows: - (i) Tr.P(C) No.85/2021 is dismissed. - (ii) Tr.P.(C) No.340/2022 is allowed by ordering the transfer of O.P.No.306/2020, from the Family Court, Thiruvalla to the Family Court, Thiruvananthapuram. - (iii) The parties would be at liberty to move the Family Court, Thiruvananthapuram, and seek for consolidation and joint trial of all the proceedings between them. - (iv) The Registry shall forthwith forward a copy of the common order to the Family Court, Thiruvalla with instructions to transmit the records in O.P.No.306/2020 to the Family Court, Thiruvananthapuram ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:10:- ``` - (v) The Family Court, Thiruvananthapuram shall, immediately on receipt of the records in O.P.No.306/2020, post the case along with O.P. (Div)No.1102/2020. Sd/- ## **C.S.DIAS,JUDGE** DST/29.08.22 //True copy/ P.A.To Judge ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:11:- ``` ## `APPENDIX OF TR.P(C) 85/2021` ``` PETITIONER ANNEXURES ANNEXURE 1TRUE COPY OF THE PETITION IN OP NO. 306/2020 BEFORE THE FAMILY COURT, THIRUVALA DATED 28.9.2020. ``` ``` ANNEXURE 2TRUE COPY OF THE PETITION IN OP (DIV) NO. 1102/2020 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM DATED 03.08.2020. ``` ``` RESPONDENT ANNEXURES: NIL ``` ``` Tr.P.(C)Nos.85/2021 & 340/2022 ``` ``` -:12:- ``` ## `APPENDIX OF TR.P(C) 340/2022` ``` PETITIONER ANNEXURES ANNEXURE 1TRUE COPY OF THE PETITION IN OP NO. 306/2020 BEFORE THE FAMILY COURT, THIRUVALA DATED 28.9.2020. ANNEXURE 2TRUE COPY OF THE PETITION IN OP (DIV) NO. 1102/2020 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM DATED 03.08.2020. ``` ``` RESPONDENT’S ANNEXURES:NIL ```