Transfer Appeal(Civil) No. 2 of 2021

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943 ## TR.APPEAL(C) NO. 2 OF 2021 AGAINST THE ORDER DATED 18.11.2020 IN Tr.P(C) 211/2020 ## APPELLANT/RESPONDENT MAHESH S. AGED 37 YEARS S/O.V.SASIDHARAN, MANOJ BHAVAN, PUNALUR, ELAMPAL P.O., KOLLAM DISTRICT, PINCODE-691322. BY ADVS. M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SRI.R.RAJESH (VARKALA) SHRI.SAMEER M NAIR ## RESPONDENT/PETITIONER JIJIMOL AGED 31 YEARS D/O.JANARDHANAN, KOCHINAZHIKATHU, JIJITH BHAVANAM, KADAVOOR, PERINADU, KOLLAM DISTRICT-691601. BY ADV B.SURJITH THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 08.07.2021, THE COURT ON 27.07.2021 DELIVERED THE FOLLOWING: Transfer Appeal(Civil)No.2 of 2021 2 ## **JUDGMENT** ## **M.R.Anitha, J.** The appellant, who is the respondent in Tr.P.(C).No.211 of 2020, has filed this Transfer Appeal aggrieved by the order of this Court dated 18.11.2020, whereby O.P.(G&W) No.206 of 2020 on the file of Family Court, Kollam was ordered to be transferred to Family Court, Ernakulam. The said Transfer Petition is one filed by the respondent, who is the wife of the appellant. 2. Tr.P.(C).No.211 of 2020 was disposed of along with Tr.P. (C).No.311 of 2020 by a common order. Tr.P.(C).No.311 of 2020 was filed by the appellant seeking for transfer of O.P.No.705 of 2020 filed by the respondent/wife against the appellant under Section 12 of Protection of Women from Domestic Violence Act **,** 2005 (in short PWDV Act) from Family Court, Ernakulam to Family Court, Kollam. In O.P.No.705 of 2020 she has attributed various acts of domestic violence against the appellant and sought for protection order under Section 18 of the said Act. The respondent also had filed M.C.No.67 of 2020 under Section 125 of the Code of Criminal Procedure 1973 before the Family Court, Ernakulam, 3 Transfer Appeal(Civil)No.2 of 2021 claiming maintenance. Further she had filed a complaint under Sections 190(1) and 200 of the Code of Criminal Procedure, 1973 alleging the commission of offence under Sections 323, 352, 309, 498A, 454A read with 34 of the Indian Penal Code against the appellant and others. The appellant on the other hand filed O.P. (G&W).No.206 of 2020 for custody of the child and also O.P.(HMA) No. 275 of 2020 before the Family Court, Kollam seeking for divorce. By the common order dated 18.11.2020, the learned Single Judge dismissed the Tr.P.(C)No. 331 of 2020 filed by the appellant. The dismissal of Tr.P.(C) No.331 of 2020 is not under challenge and that order has become final. 3. O.P.(G&W)No.206 of 2020 is filed by the appellant seeking to appoint him as the legal guardian and custodian of the minor child. According to the appellant, respondent and the minor child are permanent residents of Kollam. Respondent obtained the order of transfer of O.P.(G&W)No.206 of 2020 to Family Court, Ernakulam, misleading the court that she is residing with the child at Ernakulam. He placed reliance on **Anindita Das v. Srijit Das [(2006) 9 SCC 197]** and would contend that leniency shown by 4 Transfer Appeal(Civil)No.2 of 2021 the Court is being misused in filing the Transfer Petition without merits. 4. On 16.02.2021, when the appeal came up for admission the Court admitted the matter on file and the respondent entered appearance through counsel. On 19.02.2021, this Court granted stay of operation of the common order dated 18.11.2020 of the learned Single Judge, for a period of one month. The said interim order, which was extended from time to time, is still in force. 5. Heard the learned counsel for the appellant and also the learned counsel for the respondent. 6. The learned Single Judge, in the common order in Tr.P. (C).No.211 of 2020 and Tr.P.(C).No.331 of 2020, which were filed by the appellant and respondent respectively, followed the law laid down by the Apex Court in the decisions referred to therein that, while ordering transfer of a case from one Court to another, convenience of the women and children has to be given due preference. Pendency of M.C.No.67 of 2020 and O.P.No.705 of 2020 before Family Court, Ernakulam and Crl.M.P.No.1192 of 2020 Transfer Appeal(Civil)No.2 of 2021 5 before Judicial First Class Magistrate Court-IX, Ernakulam, was taken note of by the learned Single Judge. Further appellant's occupation at Ernakulam, coupled with the fact that the parties were residing together with child at Ernakulam prior to separation, was also taken into account. The Court has also taken note of the fact that there was nothing on record to show that the child is living in Kollam and ultimately Tr.P.(C).No.211 of 2020 filed by the respondent was allowed. 7. The main argument of the learned counsel for the appellant is with regard to the conduct of the respondent in furnishing a false address in Tr.P.(C)No.211 of 2020 filed by her, in order to bring the matter within the jurisdiction of Family Court, Ernakulam, though she and the child actually reside within the jurisdiction of Family Court, Kollam. 8. The learned counsel for the respondent on the other hand stick on to the stand that the respondent and child are residing at Ernakulam. Her parents are old and are not in a position to deal with litigation process. Earlier she had been working at the Customer Care section in Asianet Broadcasting 6 Transfer Appeal(Civil)No.2 of 2021 Office at Kalamassery. She is pursuing her studies at Ernakulam and is also working at present as an Office Admin in a job consultancy firm at Vyttila. Original of letter of employment verification dated 16.3.2021 is produced as Annexure-R1, along with the counter affidavit filed in the Transfer Appeal. 9. On 30.03.2021, after hearing both sides, this Court passed an order directing the respondent to file an affidavit stating her address and place of abode and whether the child is permanently residing with her. The name and place of school in which the child is attending online classes were also directed to be made mention of within two weeks. That affidavit has been placed on record on 22.06.2021 along with a memo filed by the respondent. 10. The main argument of the learned counsel for the appellant, as stated earlier, is with regard to the alleged misrepresentation made by the respondent regarding her address at Ernakulam, at the time of filing the Transfer Petition. His specific case is that the respondent and child were residing within the jurisdiction of Family Court, Kollam at the time of filing the Transfer Appeal(Civil)No.2 of 2021 7 Tr.P.(C).No.211 of 2020. No doubt, in custody matters the jurisdiction of the Court is determined on the basis where the child ordinarily resides, which in turn depends on the intention to make that place ones ordinary abode. 11. In **Ruchi Majoo v. Sanjeev Majoo [(2011) 6 SCC 479]** the Apex Court held that, in cases arising out of proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ Court on the one hand and a Court under the Guardians and Wards Act on the other hand. 12. In **Divya J. Nair v. S.K. Sreekanth [2018 (4) KLT 620]** a Division Bench of this Court held that, the question as to 'ordinary residence' of a minor is always to be decided on the facts and particulars of each case. The expression 'where the minor ordinarily resides' excludes places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. Where 8 Transfer Appeal(Civil)No.2 of 2021 the application is filed soon after such removal, the place of such removal has to be ignored for the purpose of determining the jurisdiction of the court to entertain the application. The new place, to which the minor may have gone or may have been removed, can become the place of ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period. Actual place of residence of the minor at the time of filing the application does not necessarily determine the jurisdiction of the court. Mere factual residence at a place at the time of the proceeding is not sufficient to confer jurisdiction. Ordinary residence means more than a temporary residence, even though such residence is spread over a long period [See: **Sarada Nayar v. Vayankara Amma (1957 KLT 466)** ]. 13. In the instant case, as admitted by the appellant, he was residing along with his wife and child at Vennala, till 20.12.2019. The copy of rent deed produced as Annexure-R1 bears an endorsement that before the stipulated period of 11 months, on 15.01.2020, the appellant was evicted from the rented building due to some reasons. The appellant filed O.P.(G.W) 9 Transfer Appeal(Civil)No.2 of 2021 No.206 of 2020 on 07.02.2020, before Family Court Kollam. This leads to an inference that soon after respondent left the company of the appellant, the case was filed. There is no specific pleading in the O.P.(G&W) that the ward is ordinarily residing within the jurisdiction of Family Court, Kollam. 14. According to the learned counsel for the appellant, at the time of filing Tr.P.(C) No.211 of 2020 the respondent has given the address at Vennala, the rented house. But actually they had vacated the house on 15.01.2020 itself, but in the Transfer Petition filed in the month of March 2020, the respondent showed her address at Vennala, which was an attempt to establish that she is still residing within the jurisdiction of Family Court, Ernakulam. Appellant relied on Annexure R1 rent deed produced by the respondent, along with the counter affidavit in Tr.P. (C)No.211 of 2020. The said document would show that the parties last resided together within the jurisdiction of Family Court, Ernakulam. 15. In **Shibu S. v. Bibi K. Venu [2012 (1) KHC 563]** a Division Bench of this Court held that, under Section 19 of the 10 Transfer Appeal(Civil)No.2 of 2021 Hindu Marriage Act, 1955, every petition filed under the Act is to be presented before the District Court/Family Court within the local limits of which the marriage was solemnised or the respondent resides or the parties last resided together. By virtue of amendment inserted on 23.12.2003 it is provided that when the wife is the petitioner, the petition can be filed at the place where she resides on the date of presentation of the petition. This, apparently, is a provision for the benefit of the wife. Furthermore, the Section also deals with the situation where the respondent is residing outside the territories to which the Act extends or when the respondent has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him if he were alive. On the facts of the case, the Division Bench found that, the petition filed by the appellant is on the basis that the parties last resided together within the jurisdiction of the Family Court, Kottarakkara. This is clearly permissible having regard to clause (iii) of Section 19 of the Act. It is also true that the petition could have been filed before the Family Court at Kottayam being the place where the respondent 11 Transfer Appeal(Civil)No.2 of 2021 resides. But the fact that the petition could have been filed at Kottayam under clause (ii) of Section 19 does not have the effect of the right given to a party to invoke clause (iii) of Section 19 being taken away. 16. Section 27 of the Protection of Women from Domestic Violence Act, 2005 deals with jurisdiction. As per sub-section (1) of Section 27, the Court of Judicial Magistrate of the First Class or the Metropolitan Magistrate, as the case may be, within the local limits of which (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent Court to grant a protection order and other orders under this Act and to try offences under this Act. As per sub-section (2) of Section 27, any order made under this Act shall be enforceable throughout India. 17. Section 9 of the Guardians and Wards Act, 1890 deals with Court having jurisdiction to entertain application. As per subsection (1) of Section 9, if the application is with respect to the guardianship of the person of the minor, it shall be made to the 12 Transfer Appeal(Civil)No.2 of 2021 District Court having jurisdiction in the place where the minor ordinarily resides. As per sub-section (2) of Section 9, if the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. As per sub-section (3) of Section 9, if an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. 18. In view of the provisions under Section 27(1)(c) of the Protection of Women from Domestic Violence Act, 2005 the respondent can file O.P.No.705 of 2020 at the place where she resides at the time of filing the petition. Similarly, in view of the provisions under Section 9(1) of the Guardians and Wards Act, 1890 the respondent can file O.P.(G&W) No.206 of 2020 before 13 Transfer Appeal(Civil)No.2 of 2021 the Family Court having jurisdiction in the place where the minor ordinarily resides. In the counter affidavit filed in this appeal and also the affidavit dated 22.06.2021 filed consequent to the direction of this Court dated 30.03.2021, the respondent has categorically stated that she and her son had been residing in a rented house, ie., 32/2166-A, Popular Road, Vaduthala, PIN - 682 023, along with her colleague. She is pursuing her studies and also working as Office Admin in a Job Consultancy Firm at Vyttila. She produced Annexure-R1 letter of employment verification from the employer. In the affidavit dated 22.06.2021 she has stated that presently she along with her child are residing at Aluva. The child is studying in 2[nd] standard at St.Francis Xaviers LPS, Aluva. During the last academic year, the child was in 1[st] standard at Sree Vidyadhiraja Public School, Anchalumoodu, Kollam. It is argued by the learned counsel for the respondent that during the last year the child was attending the classes online from the house of her colleague at Vaduthala. As has been found by the learned Single Judge, nothing could be produced by the appellant herein to substantiate his contention that the child and respondent were 14 Transfer Appeal(Civil)No.2 of 2021 residing at Kollam, while the Transfer Petition was filed. However, we take notice of the solemn affirmation of the respondent in the affidavit filed in support of Tr.P.(C).No.211 of 2020, without mentioning her place of abode, which is a mandatory requirement while swearing such an affidavit, as per Rule 74 of the Rules of the High Court of Kerala, 1971. So also, in spite of specific direction to file affidavit within two weeks from 18.03.2021 stating the place of abode and the school where the ward is studying and attending the online classes, the respondent filed the affidavit only on 22.06.2021. We strongly deprecate the conduct of the respondent in this regard. 19. The affidavit sworn to by the respondent on 22.06.2021 would show her intention to continue to stay within the jurisdiction of Family Court, Ernakulam since the ward has been admitted at St.Francis Xaviers LPS, Aluva. More over, M.C.No.67 of 2020 filed by the respondent under Section 125 of the Criminal Procedure Code 1973 is pending before Family Court, Ernakulam. Crl.M.P.No.1192 of 2020 filed under Section 190(1) and 200 of CrPC. for reference under Section 156(3) is also filed before the Transfer Appeal(Civil)No.2 of 2021 15 Judicial First Class Magistrate Court, Ernakulam. It is not in dispute that the appellant is working at Ernakulam, within the jurisdiction of Family Court, Ernakulam. It is pointed out that O.P. (HMA) No.275 of 2020 filed by the appellant is pending before the Family Court, Kollam, which was not sought to be transferred by the respondent. But that itself, in our opinion, is not a reason to interfere with the order of transfer of O.P.(G&W) from Family Court, Kollam to Family Court, Ernakulam. When a woman spouse seeks for transfer of a case to a court where other proceedings are initiated by her, the fact that she did not ask for transfer of one another matter need not be weighed much, especially when the case sought to be transferred is O.P.(G&W) and that too, when child is ordinarily residing within the jurisdiction of the transferee court. 20. In **Anindita Das v. Srijit Das [(2006) 9 SCC 197]** , a decision relied on by the learned counsel for the appellant, the Apex Court was dealing with a case in which the transfer petition has been filed by the wife on the ground that she has a small child of six years. She has further claimed that she has no source of 16 Transfer Appeal(Civil)No.2 of 2021 income and it is difficult for her to attend the Court at Delhi. She has further claimed that she is not keeping good health. Considering the fact that, on an average at least 10 to 15 transfer petitions are on board of each court on each admission day, the Apex Court observed that the leniency shown by the Court is being misused by the women. On the facts of the case, the Apex Court noticed the child is six years old and there are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met. Except for stating that the petitioner’s health is not good, no particulars were given. On the ground that she is not able to come to Delhi to attend the court on a particular date, it was observed that she can always apply for exemption and her application will undoubtedly be considered on its merit. In the above circumstances, the Apex Court dismissed the transfer petition, holding that no ground for transfer has been made out. 17 Transfer Appeal(Civil)No.2 of 2021 21. In **Sumita Singh v. Kumar Sanjay and another [(2001) 10 SCC 41]** the Apex Court was dealing with a case in which the wife filed transfer petition seeking transfer of matrimonial proceedings filed by the husband against her in Ara, Bhojpur to Delhi. It was her case that she is living and working in Delhi and that, she would be unable to travel up and down from Delhi to Ara, a distance of about 1,100 Kilometers from Delhi, to defend the matrimonial proceedings. She has no one with whom she can stay in Ara because her parents are residents of Gurgaon. The learned counsel for the husband contended that the wife is an educated woman who is doing very well and can, therefore, travel to Ara while the husband is unemployed. The Apex Court allowed the transfer petition, observing that it is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at. 22. In the impugned order, the learned Single Judge noticed that in the judgments of the Apex Court in **Sumitha Singh v. Kumar Sanjay and another [(2001) 10 SCC 41]** , **Mona Aresh Goel v. Aresh Satya Goel [(2000) 9 SCC 255]** , Transfer Appeal(Civil)No.2 of 2021 18 **Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap [(2016) 14 SCC 356]** , and **Santhini v. Vijaya Venkatesh [(2018) 1 SCC 1]** wherein it was held that, it is the convenience of the woman and children that has to be given due preference, while ordering transfer of a case from one Court to another. 23. In the instant case, the respondent-wife is pursuing her studies at Ernakulam, and the child is studying at a school and living with the respondent, within the jurisdiction of Family Court, Ernakulam, where three other proceedings are already pending between the parties. So we do not find any justifiable reason to interfere with the impugned order passed by the learned Single Judge. In the result, the appeal is found to be devoid of any merit and accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **M.R. ANITHA JUDGE** Mrcs/Shg