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High Court of KeralaSingle JudgeTransfer petition allowed; GOP No.1309/2020 tra...

Transfer Petition (Civil) No. 662 of 2021

Case / Petition Number:TR.P(C) NO. 662 OF 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2022-11-08
Court Decision / Holding
The transfer petition is allowed. GOP No.1309/2020 is transferred from the Family Court, Thrissur to the Family Court, Thiruvananthapuram. The Registry is directed to transmit the records to Thiruvananthapuram and the Family Court there must issue notices to the parties for appearance on receipt of Annexure-A1. The decision follows the principle that the convenience of the woman and child should guide transfer in matrimonial disputes.
Final Disposition
Transfer petition allowed; GOP No.1309/2020 transferred from the Family Court, Thrissur to the Family Court, Thiruvananthapuram; records to be transmitted; notices to parties to be issued after transfer.

Parties to the Case

Appellants / Petitioners

  • MADHU
  • BENHUR S.

Respondents

  • VINCENT

Legal Representation & Advocates

Counsels for Petitioners

  • • V.K. DINESH KUMAR
  • • SANEL CHERIAN

Counsels for Respondents

  • • Jayaprasad M R

Case Synopsis & Summary

This is a Transfer Petition under Section 24 CPC filed in the Kerala High Court, Ernakulam, seeking to transfer GOP No.1309/2020 from the Family Court, Thrissur, to the Family Court, Thiruvananthapuram. The petition is filed by Madhu and Benhur S. (the latter a minor represented through his father Madhu) alleging that the respondent Vincent, husband of late Sona (who reportedly committed suicide due to mental and physical cruelty by the respondent and his mother), has custody proceedings pending in Thrissur. The minor son is living with Madhu in Thiruvananthapuram, and the parties argue that traveling to Thrissur for hearings would cause substantial hardship, given a distance exceeding 280 kilometers one-way. The respondent contends Thrissur has jurisdiction and accuses the petition of lacking valid grounds for transfer. The Bench relies on Supreme Court pronouncements — Sumithha Sing v. Kumar Sanjay and others, Mona Aresh Goel v. Aresh Satya Goel, Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap, Santhini v. Vijaya Venkatesh, and N.C.V. Aishwarya v. A.S. Saravana Karthik Sha — to emphasize that transfer decisions must prioritize the convenience and welfare of the woman and, especially, the child. Observing that the minor resides with the petitioner in Thiruvananthapuram and that travel to Thrissur would be onerous, the Court exercises its discretion under Section 24 CPC and allows the transfer, directing record transmission and notices to be issued after transfer.

Provisions of Law Cited

Section 24, Code of Civil ProcedureSections 498A, 306, 406 read with Section 34, IPC

Legal Doctrines & Maxims

  • Convenience of the woman and child doctrine (principle guiding transfer of matrimonial disputes)
  • Best interests of the child (implicit in the transfer reasoning)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that GOP 1309/2020 seeks permanent custody of the minor child and should be transferred to the Family Court at Thiruvananthapuram under Sec. 24 CPC. They reside in Thiruvananthapuram, and the minor’s access to the respondent would be hampered by a long intercity journey (over 280 kms one-way). The petition asserts that the convenience and welfare of the child and mother should guide forum change, and the travel burden would prejudice the child’s interim custody and the petitioners’ participation in proceedings. The petition further contends that Thiruvananthapuram is the place where the family’s current circumstances and residence are located, making transfer appropriate.

Contentions of Respondents

The respondent contests the transfer, arguing that Thrissur Family Court has jurisdiction over the original custody petition and that there is no valid ground to transfer. He asserts that post-widowhood the 1st petitioner allegedly took custody and that the convenience principle cannot override jurisdiction. He pleads that the petition is an attempt to defeat the custody proceeding, and maintains that the procedures and access should be adjudicated in Thrissur, where the matter was initially filed.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Sumitha Sing v. Kumar Sanjay and another2002 KHC 1889PositiveCited to support the principle that transfer decisions in matrimonial disputes should be guided by the convenience of the woman and child.
Mona Aresh Goel v. Aresh Satya Goel2000 KHC 1835PositiveCited as an authoritative precedent aligning transfer decisions with the welfare and convenience of the parties, particularly the child.
Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap2016 KHC 6489PositiveCited for the principle that the welfare of the child and convenience of the parties influence transfer orders.
Santhini v. Vijaya Venkatesh2017 (5) KHC 48PositiveCited as supportive authority for prioritizing the child’s convenience and welfare in transfer cases.
N.C.V. Aishwarya v. A.S. Saravana Karthik Sha2022 (5) KHC 185PositiveCited to reinforce the same guiding principle on transfer considerations in matrimonial disputes.

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Extracted Judgment Text

Exact text extracted from official judgment records.

``` TR.P(C) NO. 662 OF 2021 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944 ``` ``` TR.P(C) NO. 662 OF 2021 ``` ## **`TO TRANSFER GOP 1309/2020 OF FAMILY COURT,THRISSUR`** ## **`PETITIONER/S:`** ``` 1MADHU AGED 56 YEARS S/O.KESAVAN, NELLUVILA HOUSE, PARATTUKKONAM P.O., THIRUVANANTHAPURAM VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, KERALA, PIN - 695 015. ``` ``` 2BENHUR S. AGED 2 YEARS (DOB 04.09.2019) S/O.SONA, REPRESENTED BY MADHU, S/O.KESAVAN, AGED 56 YEARS, NELLUVILA HOUSE, PARATTUKONAM P.O., THIRUVANANTHAPURAM VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, KERALA, PIN - 695 015. ``` ``` BY ADVS. V.K.DINESH KUMAR SANEL CHERIAN ``` ## **`RESPONDENT/S:`** ``` VINCENT, AGED 31 YEARS S/O.BABU, MALIAKKAL HOUSE, MARATHAKKARA VILLAGE, KANAKKASSERRY DESOM, MARATHAKKARA P.O., THRISSUR TALUK, TRISSUR DISTRICT, KERALA, PIN - 680 306. BY ADV Jayaprasad M R ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` TR.P(C) NO. 662 OF 2021 ``` 2 ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, seeking to transfer GOP.No.1309/2020 (Annexure A1) from the Family Court, Thrissur to the Family Court, Thiruvananthapuram. 2. The petitioner’s case, in brief, in the memorandum of transfer petition is: the respondent is the husband of late Sona – the daughter of the 1[st] petitioner. The 2[nd] petitioner is the son born in the marriage between the respondent and late Sona. Sona committed suicide on 23.05.2020 due to the mental and physical cruelty meted out on her by the respondent and his mother. The police have registered crime No.1087/2020 against the respondent for the offences punishable under Sections 498(A), 306, 406 read with Section 34 of the IPC. The respondent was under ``` TR.P(C) NO. 662 OF 2021 ``` **==> picture [7 x 9] intentionally omitted <==** judicial custody for more than 40 days. The 2[nd] petitioner is in the permanent custody of the 1[st] petitioner. Now, the respondent has filed GOP.No.1309/2020 before the Family Court, Thrissur, for the permanent custody of the 2[nd] petitioner. The petitioners are residing in Thiruvananthapuram. It would be difficult and inconvenient for the petitioners to travel all the way from Thiruvananthapuram to Thrissur to contest the above original petition. Hence, the transfer petition. 3. The respondent has filed a counter affidavit denying the allegations in the transfer petition. He has contended that after the death of his wife, the 1[st] petitioner forcefully took away the custody of the child from him. It is the Family Court, Thrissur that has the jurisdiction to decide the original petition. The 1[st] petitioner is preventing the child to grow up with the respondent. There is no valid grounds pleaded in the ``` TR.P(C) NO. 662 OF 2021 ``` 4 transfer petition. The transfer petition may be dismissed. 4. Heard; Sri. V.K.Dinesh Kumar, the learned counsel appearing for the petitioners and Sri. M.R.Jayaprasad the learned counsel appearing for the respondent. 5. 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], **Santhini V. Vijaya Venkatesh** [2017 (5) KHC 48] and **N.C.V. Aishwarya vs. A.S. Saravana Karthik Sha** [2022 (5) KHC 185]. The Hon’ble Supreme Court has held that ``` TR.P(C) NO. 662 OF 2021 ``` 5 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. 6. Going by the law laid down by the Honourable Supreme Court in the afore-cited decisions, it is emphatically laid down that it is the convenience of the child that has to be looked into, while ordering the transfer of one case to another court. 7. In the case at hand undisputedly, the 2[nd] petitioner is residing with the 1[st] petitioner in Thiruvananthapuram. GOP.No.1309/2020 is filed for the permanent custody of the child. Therefore, the child would have to be produced before the Family Court, in order to give access and to facilitate the interim custody of the child to the respondent. As the distance between Thiruvananthapuram and Thrissur is more than 280 kilometers on one side, necessarily, it would cause severe hardship to the 2[nd] petitioner, if he has to ``` TR.P(C) NO. 662 OF 2021 ``` 6 travel all the way from Thiruvananthapuram to Thrissur and back. Therefore, I am of the definite view that it is the convenience of the 2[nd] petitioner, that has to be looked into, while deciding the transfer petition. Hence, 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 GOP.No.1309/2020 from the Family Court, Thrissur to the Family Court, Thiruvananthapuram. In the result, I allow the transfer petition as follows:- (i) GOP No.1309/2020 is transferred from the Family Court, Thrissur to the Family Court, Thiruvananthapuram. (ii) The Registry shall forward a copy of this order to the Family Court, Thrissur with instructions to forthwith transmit the records in GOP No.1309/2020 to the Family Court, ``` TR.P(C) NO. 662 OF 2021 ``` 7 Thiruvananthapuram. (iii) The Family Court, Thiruvananthapuram shall, immediately on receipt of the records in Annexure-A1, issue notice to the parties for their appearance. **Sd/C.S.DIAS JUDGE** rkc/08.11.22 ``` TR.P(C) NO. 662 OF 2021 ``` 8 ## **`APPENDIX OF TR.P(C) 662/2021`** ## `PETITIONER ANNEXURES` ``` Annexure A1TRUE COPY OF THE PETITION GOP NO.1309/2020 ON THE FILE OF FAMILY COURT JUDGE, THRISSUR. Annexure AIITRUE COPY OF THE IA NO.2/2021 IN GOP NO.1309/2020 ON THE FILE OF FAMILY COURT JUDGE, THRISSUR. ```