High Court of KeralaDivision Bench2020-07-30Appeals dismissed; common judgment confirmed; t...

Thulaseedharan Pillai v. Bindu Pillai

Case / Petition Number:Tr.Appeal Nos.7 & 9 of 2020 (in Tr.P(C) 270/2019 and 128/2020)

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. V. Bhatti
Bechu Kurian Thomas
Judgment Date: 2020-07-30
Court Decision / Holding: We confirm the common judgment of the learned Single Judge dated 3.3.2020 in Tr.P.(C) No.270 of 2019 and Tr.P.(C) No.128 of 2020 and dismiss the appeals.
Final Disposition: Appeals dismissed; common judgment confirmed; transfer orders to Ernakulam upheld.

Parties to the Case

Appellants / Petitioners

THULASEEDHARAN PILLAI

Respondents

BINDU PILLAI

Legal Representation & Advocates

Counsels for Petitioners

• C. UNNIKRISHNAN
• JOHNSON GOMEZ
• SANJAY JOHNSON

Counsels for Respondents

• SMT.SUJA PADNABAN PILLAI

Case Synopsis & Summary

These transfer appeals challenge a common High Court judgment that allowed the transfer of five matrimonial cases from Kollam to the Family Court at Ernakulam for trial. The appellant-husband contends that the impugned order was rendered without addressing his detailed objections, and that the wife’s asserted residence in Ernakulam, and the convenience of her counsel, wrongly influenced the decision. He argues that he was compelled to contest his wife’s petitions while she had chosen to file at Kollam, and that moving the cases would impose hardship, especially since he is blind in one eye and would face travel difficulties from the UAE if he must appear in Ernakulam. He cites decisions from other jurisdictions to argue that inconvenience to the wife cannot be the sole basis for a transfer. The respondent-wife counters that the cases involve a child in Ernakulam, custody arrangements, and the wife’s elderly mother, making Ernakulam the proper forum; the court’s location and convenience for the wife and child weigh in favor of transfer, with the husband’s international residence adding to the burden of appearing in Kollam. After evaluating the parties’ circumstances and the welfare of the child, the court agrees that the single judge’s order was well founded and should not be interfered with, thereby dismissing the appeals and upholding the transfer to Ernakulam.

Provisions of Law Cited

Section 24 of the Civil Procedure Code, 1908

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the impugned judgment was rendered without addressing his detailed objections. He argues that the wife, though claiming residence in Ernakulam, filed the proceedings at Kollam and has since effectively moved to Ernakulam; transfer is sought primarily for the convenience of the wife’s counsel rather than for genuine jurisdictional reasons. He cites Dipika Agarwal v. Rishi Agarwal and Chakradharamahanthi Vekata Maikya Prasuna v Chakradharamahanthi Vekata Ramana Murthy to claim that the wife’s inconvenience cannot be the sole ground for transfer, and he stresses his own hardship (being blind in one eye) if transferred. He submits that the objections were not properly considered and that the court should weigh other circumstances before transferring.

Contentions of Respondents

The respondent-wife argues that the matrimonial disputes involve custody, maintenance, and guardianship matters affecting the minor child and the elder mother, all of which justify Ernakulam as the appropriate forum. She asserts that the Single Judge conducted a detailed assessment of the parties’ circumstances and that the appellate court should not interfere with a reasoned transfer order, especially given the husband’s UAE residence and travel burdens. She emphasizes welfare considerations and the availability of an accessible forum for contesting the proceedings.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Dipika Agarwal v. Rishi Agarwal	2019 (3) Cal.LT 537	Mentioned Only	Cited in argument to discuss the role of inconvenience in transfer, but the court clarifies that it does not lay down that inconvenience to a party cannot be considered; hence not treated as controlling authority.
Chakradharamahanthi Vekata Maikya Prasuna v Chakradharamahanthi Vekata Ramana Murthy	2019 (2) ALT 1 (TS&AP)	Mentioned Only	Cited similarly to illustrate views on inconvenience; not adopted as binding doctrine by the court in the present case.
Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust	2005 (4) KLT 865 (FB)	Positive	Cited to support the appellate authority under Section 24 CPC for transferring matrimonial disputes, validating the appellate route used in this case.

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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 S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942 Tr.Appeal No.7 OF 2020 IN Tr.P(C). 270/2019** **AGAINST THE JUDGMENT IN Tr.P(C) 270/2019 OF HIGH COURT OF KERALA** ## **APPELLANT/RESPONDENT IN Tr.P.(C):** **THULASEEDHARAN PILLAI, AGED 56 YEARS, S/O.RAGHAVAN PILLAI, INDIRA BHAVANAM, KAKKAKOTTOOR MURI, AMBALATHUMKALA, EZHUKONE, KOLLAM DISTRICT - 691 505.** **BY ADVS. SRI.C.UNNIKRISHNAN (KOLLAM) SRI.JOHNSON GOMEZ SRI.SANJAY JOHNSON** ## **RESPONDENT/PETITIONER IN Tr.P(C):** **BINDU PILLAI AGED 47 YEARS, D/O.PADMANABHAN PILLAI, 22H BROWN, SKYLINE IVY LEAGUE, EDACHIRA, KAKKANAD, KOCHI - 30.** **R1 BY ADV. SMT.SUJA PADNABAN PILLAI** **THIS TRANSFER APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2020, ALONG WITH Tr.Appeal NO.9/2020, THE COURT ON 30-07-2020 DELIVERED THE FOLLOWING:** **-:2:-** Tr.Appeal Nos.7 & 9 of 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942 Tr.Appeal No.9 OF 2020 IN Tr.P(C). 128/2020 AGAINST THE ORDER IN Tr.P(C) 128/2020 OF HIGH COURT OF KERALA** ## **APPELLANT/RESPONDENT IN Tr.P.(C):** **THULASEEDHARAN PILLAI, AGED 56 YEARS, S/O.RAGHAVAN PILLAI, INDIRA BHAVANAM, KAKKAKOTTOOR MURI, AMBALATHUMKALA, EZHUKONE, KOLLAM DISTRICT - 691 505.** **BY ADVS. SRI.C.UNNIKRISHNAN (KOLLAM) SRI.JOHNSON GOMEZ** ## **RESPONDENT/PETITIONER IN Tr.P(C):** **BINDU PILLAI AGED 47 YEARS, D/O.PADMANABHAN PILLAI, 22H BROWN, SKYLINE IVY LEAGUE, EDACHIRA, KAKKANAD, KOCHI - 30. R1 BY ADV. SMT.SUJA PADNABAN PILLAI** **THIS TRANSFER APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2020, ALONG WITH Tr.AppealNO.7/2020, THE COURT ON 30-07-2020 DELIVERED THE FOLLOWING:** **-:3:-** Tr.Appeal Nos.7 & 9 of 2020 ## **JUDGMENT** Dated this the 30[th] day of July, 2020 ## _Bechu Kurian Thomas, J._ Husband in a marriage which has fallen into disharmony, has preferred these appeals, challenging the orders of transfer, transferring five cases pending before the Family Court, Kollam to the Family Court, Ernakulam for trial and disposal. The following cases were the subject matters of the impugned Judgments. - (i) O.P.(HMA) No.647 of 2017 filed by the husband seeking a decree of divorce - (ii) M.C. No.391 of 2018 filed by the wife seeking maintenance - (iii) O.P.(HMA) No.1310 of 2018 filed by the wife seeking divorce - (iv) G.O.P. No.469 of 2019 filed by the husband seeking custody of the two children; and - (v) O.P. No.913 of 2019 filed by the husband for declaration of title and for recovery of money and other reliefs. 2. By the impugned common judgment dated 3.3.2020, the learned Single Judge came to the conclusion that since the respondent/wife is residing at Ernakulam and the children are both in the custody of the wife, with the eldest of them having now attained majority and the minor child studying in Ernakulam, the transfer as sought for by the wife to Ernakulam was liable to Tr.Appeal Nos.7 & 9 of 2020 **-:4:-** be allowed. The residence of the husband at UAE was also taken note of, while coming to the conclusion that the cases were required to be transferred. 3. The appeals have been preferred pointing out that, even though detailed objections were filed opposing the request for transfer, the learned Single Judge allowed the appeals solely on the basis of inconvenience of the wife. 4. We have heard Sri.C.Unnikrishnan, learned counsel for the appellant as well as Smt.Suja Padnaban Pillai, learned counsel for the respondent. 5. Adv. Sri. C Unnikrishnan vehemently contended that the impugned judgment was arrived at, without referring to any of the objections raised by the appellant/husband opposing the prayer for transfer. He submitted that even though the wife alleges that she is residing at Ernakulam, she had chosen to file the cases at Kollam, which shows that she had shifted to Ernakulam, after filing of the cases and that it also indicates that there will be no hardship for her to attend the courts at Kollam for the purpose of contesting the cases. He further submitted that the respondent is represented by her own sister, which according to him is not ethical and the transfer is actually for the counsel's convenience. According to the learned counsel, the Tr.Appeal Nos.7 & 9 of 2020 ## **-:5:-** alleged inconvenience is created by the wife and the same should not be considered. He referred to the decision in **Dipika Agarwal v. Rishi Agarwal** (2019 (3) Cal.LT 537) and **Chakradharamahanthi Vekata Maikya Prasuna** v. **Chakradharamahanthi Vekata Ramana Murthy** (2019 (2) ALT 1)(TS&AP) to contend that inconvenience of the wife is not a reason for a transfer. He further submitted that the appellant would be put to great difficulty especially since he is blind in one eye to contest the matter, if it is transferred to Ernakulam. 6. Adv. Smt. Suja Padnaban, learned counsel for the respondent made a passionate plea that the impugned judgment was passed after a detailed consideration, referring to each and every case pending and also after taking note of the situation of the wife as well as that of the husband and circumstances do not warrant an interference with the said judgment especially in exercise of the appellate jurisdiction. 7. We have considered the rival contentions. We feel that the contest is more emotive in nature rather than legal. Unfortunately every step in the litigation process is being looked upon by the parties in this case, as a battle. 8. An appeal is permitted against the Judgment of a Single Judge passed in exercise of the power under section 24 of the Tr.Appeal Nos.7 & 9 of 2020 **-:6:-** Civil Procedure Code 1908, as laid down in **Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust** [2005 (4) KLT 865 (FB)]. 9. A comparative analysis of the situation of the parties will enable us to assess the hardships that will befall the parties to the dispute. A minor child of 9 years resides with the wife at Ernakulam. The child is studying in Ernakulam. The aged mother of the wife is residing with her at Ernakulam. The wife expresses fear in attending the courts at Kollam due to the presence of relatives of the husband, alleging which, she had even filed a writ petition for police protection. She was compelled to file the cases at Kollam on account of the jurisdictional requirement of cause of action. If transfer is not allowed, the wife will have to travel, for every posting, all the way upto Kollam, leaving the aged mother and the minor child at Ernakulam. Appellant is presently residing at UAE. Whenever his appearance is required in Court, he will have to travel anyway from UAE to reach Kerala. Existence of an International Airport within the limits of Ernakulam district will provide easier access for the husband for appearing in the case, when compared with the distance from Thiruvananthapuram International Airport to Kollam. The hardship that will fall upon the husband by transferring the cases Tr.Appeal Nos.7 & 9 of 2020 ## **-:7:-** from Kollam to Ernakulam is minimal, when compared to the hardships that will befall the wife, if transfer is not granted. Considering the circumstances arising in these cases as narrated above, we feel that the learned Single Judge was perfectly justified in transferring the cases. 10. The decisions cited by the learned counsel for the appellant do not lay down that inconvenience of the wife is not to be reckoned at all. In the Calcutta decision, it was observed that the inconvenience pleaded by the wife has to be weighed with other attending circumstances. Viewed in the light of all the circumstances arising in the case, the learned Single Judge has directed transfer of the cases to Family Court, Ernakulam. 11. Though brief, the learned Single Judge has chosen to exercise the remedy in favour of one of the parties especially taking into reckoning the fact that appellant resides at UAE. We are in agreement with the conclusion of the learned Single Judge. This Court would be slow and cautious to interfere, even in appellate jurisdiction, in a matter relating to transfer of a matrimonial dispute against the decision of a learned Single Judge. As observed by us earlier, in the circumstances of the case, the judgment is perfectly justified and we do not find any reason to interfere with the impugned judgment. Tr.Appeal Nos.7 & 9 of 2020 **-:8:-** In view of the above, we confirm the common judgment of the leaned Single Judge dated 3.3.2020 in Tr.P.(C) No.270 of 2019 and Tr.P.(C) No.128 of 2020 and dismiss the appeals. ## **SD/-** **S.V.BHATTI JUDGE** **SD/-** **BECHU KURIAN THOMAS JUDGE** vps Tr.Appeal Nos.7 & 9 of 2020 ## **-:9:-** ## **APPENDIX IN TRANSFER APPEAL NO.7 OF 2020** ## **APPELLANT'S/S' ANNEXURES:** ## **NIL** ## **RESPONDENT'S/S' ANNEXURES:** **ANNEXURE R1 TRUE COPY OF THE JUDGMENT DTD 3.3.2020 IN TR.P.C. NO.270 OF 2019 AND TR.P.C. NO.128 OF 2020 ANNEXURE R2 TRUE COPY OF THE PETITION O.P.(CIVIL) NO.913 OF 2019 ON THE FILE OF THE FAMILY COURT, KOLLAM FILED BY THE APPELLANT HEREIN AGAINST THE RESPONDENT ANNEXURE R3 TRUE COPY OF THE PETITION O.P.(HMA) NO.1310 OF 2018 ON THE FILE OF THE FAMILY COURT, KOLLAM FILED BY THE RESPONDENT HEREIN AGAINST THE APPELLANT FOR DIVORCE ANNEXURE R4 TRUE COPY OF THE PETITION O.P.(HMA) NO.617 OF 2017 ON THE FILE OF THE FAMILY COURT, KOLLAM FILED BY THE APPELLANT AGAINST THE RESPONDENT ANNEXURE R5 TRUE COPY OF THE PETITION IN MC NO.391 OF 2018 ON THE FILE OF THE FAMILY COURT, KOLLAM FILED BY THE RESPONDENT AGAINST THE APPELLANT FOR GETTING EDUCATIONAL FEES AND MISC. EXPENSE FOR HER CHILDREN ANNEXURE R6 TRUE COPY OF THE PETITION GOP NO.469 OF 2019 ON THE FILE OF THE FAMILY COURT, KOLLAM IS FILED BY THE APPELLANT AGAINST THE RESPONDENT FOR GETTING CUSTODY OF THE YOUNGER SON ANNEXURE R7 TRUE COPY OF THE SALE DEED OF THE RESPONDENT RESIDENCE, RESIDING AT SKYLINE, EDACHIRA ANNEXURE R8 TRUE COPY OF THE FIR NO.434 OF 2019 UNDER SECTION 506, 509, 34 OF IPC 1860, KAKKANAD POLICE STATION, ERNAKULAM COMPLAINT FILED BY THE RESPONDENT HEREIN AGAINST THE APPELLANT AND HIS HENCHMEN** Tr.Appeal Nos.7 & 9 of 2020 ## **-:10:-** |**ANNEXURE R9**|**TRUE COPY OF THE CC NO.1789 OF 2018, UNDER**| |---|---| ||**S.447 AND 506(ii) OF IPC, ANCHALUMMOODU**| ||**POLICE STATION, KOLLAM COMPLAINT FILED BY**| ||**THE RESPONDENT HEREIN AGAINST THE APPELLANT**| ||**HEREIN AND HIS GUNDAS**| |**ANNEXURE R10**|**TRUE COPY OF THE CC NO.1444 OF 2018, UNDER**| ||**S.509 AND 506(i) OF IPC, ANCHALUMMOODU**| ||**POLICE STATION, KOLLAM COMPLAINT FILED BY**| ||**THE RESPONDENT HEREIN AGAINST THE APPELLANT**| ||**HEREIN AND HIS GUNDAS**| |**ANNEXURE R11**|**TRUE COPY OF THE FIR NO.140 OF 2020 UNDER**| ||**S.294(b), 506 OF IPC, WEST POLICE STATION,**| ||**KOLLAM COMPLAINT FILED BY THE RESPONDENTS**| ||**DAUGHTER AGAINST THE APPELLANTS HENCHMAN,**| ||**FIR FILED ON RECENTLY ON 14.2.2020**| |**ANNEXURE R12**|**TRUE COPY OF THE W.P.(CRL.) NO.133 OF 2018,**| ||**PETITION FILED BY THE MOTHER/RESPONDENT**| ||**HEREIN FOR GUARDIANSHIP OF THE ELDER**| ||**DAUGHTER.**| |**ANNEXURE R13**|**TRUE COPY OF THE JUDGMENT IN W.P(C) NO.**| ||**14477 OF 2018-H, FILED BY THE RESPONDENT**| ||**AGAINST APPELLANT AND HIS GUNDAS AND**| ||**RELATIVES FOR PROTECTION ORDER.**| |**ANNEXURE R14**|**TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.**| ||**14493 OF 2018-H, FILED BY THE RESPONDENT FOR**| ||**FURTHER INVESTIGATION BY A SUPERIOR OFFICER**| ||**IN CR. NO. 67 OF 2018**| |**ANNEXURE R15**|**TRUE COPY OF THE FIR NO.67 OF 2018 UNDER**| ||**SECTION, 7, 8, 9 AND 10 OF POCSO ACT OF**| ||**2012, UNDER SECTION 75 OF JJ ACT, UNDER**| ||**SECTION 323, 354A(1)(III), FILED BY THE**| ||**RESPONDENTS ELDER DAUGHTER.**| |**ANNEXURE R16**|**TRUE COPY OF THE PASSPORT OF THE APPELLANT**| ||**STATING THAT HE IS RESIDING AND WORKING IN**| ||**FUJAIRAH**<br>**UAE,**<br>**SINCE**<br>**15**<br>**YEARS**| |**ANNEXURE R17**|**TRUE COPY OF THE DETAILS OF THE CR.M.P**| ||**NO.932 OF 2019 IN CR.NO. 067 OF 2018, KOLLAM**| ||**WEST POLICE STATION, PENDING BEFORE SESSIONS**| ||**COURT KOLLAM**| Tr.Appeal Nos.7 & 9 of 2020 **-:11:-** **ANNEXURE R18 TRUE COPY OF THE RESPONDENTS DAUGHTERS AND SONS EDUCATIONAL EXPENSES WHICH ARE PAID BY THE MOTHER FROM 2018 TILL NOW ANNEXURE R19 KABEER V. NAZIM**