High Court of KeralaSingle Judge2022-11-10Transfer petitions disposed: 613/2021 dismissed...

Tr.P (C) Nos. 613/2021 and 475/2022, High Court of Kerala

Case / Petition Number:Tr.P (C) Nos. 613/2021 and 475/2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2022-11-10
Court Decision / Holding: The transfer petitions are disposed of as follows: (i) TrP(C) No.613/2021 is dismissed. (ii) Tr.P(C) No.475/2022 is allowed by transferring OP No.342/2021 from the Family Court, Kottarakkara, to the Family Court, Pathanamthitta. (iii) The parties may seek consolidation and joint trial of all related cases in Pathanamthitta. (iv) The first respondent may seek dispensation of personal appearance in Pathanamthitta. (v) The Registry shall forward a copy of the order to the Family Court, Kottarakkara, with records to be transmitted to Pathanamthitta. (vi) Pathanamthitta shall post OP/ D/449/2020 along with OP/342/2021. These directions reflect the court’s emphasis on child welfare and procedural efficiency, aligning with Supreme Court precedents on transfer of matrimonial disputes.
Final Disposition: Transfer petitions disposed: 613/2021 dismissed; 475/2022 allowed with transfer of OP 342/2021 to Pathanamthitta; directions for consolidation, records transfer, and potential dispensation of appearance; Pathanamthitta Court to hear OP/Div 449/2020 with OP/342/2021.

Parties to the Case

Appellants / Petitioners

JINU THOMAS
PREETHA VARGHESE

Respondents

JINU THOMAS
PREETHA VARGHESE
MARIYAMMA THOMAS

Legal Representation & Advocates

Counsels for Petitioners

• MANU RAMACHANDRAN
• M. KIRANLAL
• T.S.SARATH
• R.RAJESH (VARKALA)
• SAMEER M NAIR
• HARSHA SUSAN SAM
• GEETHU KRISHNAN

Counsels for Respondents

• RESHMI JACOB

Case Synopsis & Summary

Two transfer petitions arising from matrimonial disputes between Preetha Varghese and Jinu Thomas were heard together by Justice C. S. Dias of the Kerala High Court. The petitions seek transfer of OP (Div) 449/2020 pending before the Family Court, Pathanamthitta, and OP 342/2021 pending before the Family Court, Kottarakkara, on grounds of hardship and inconvenience related to a power of attorney and to secure the welfare of the children. The leading case (Tr.P(C) No. 475/2022) involves Jinu Thomas as petitioner seeking transfer to Pathanamthitta; the other petition (Tr.P(C) 613/2021) involves Preetha Varghese, contending hardship due to her foreign employment and the power-of-attorney arrangement. The court notes settled jurisprudence on transfer of matrimonial disputes: the inconvenience of the power-of-attorney holder cannot be the sole ground for transfer (Mini Antony v. Savio Aruja) and emphasizes the Supreme Court principle that the convenience of the wife and children governs transfer decisions. The court observes that the children reside with the petitioner in Pathanamthitta; the wife is abroad since 2017; and the second respondent (the petitioner’s elderly mother) resides with him. Balancing these factors, the court dismisses one petition and allows the other, directing transfer, consolidation, and procedural directions to safeguard the children’s welfare. Overall, the decision aligns with the welfare principle and procedural efficiency in matrimonial transfers.

Provisions of Law Cited

Code of Civil Procedure, Sec. 24

Legal Doctrines & Maxims

Inconvenience of the power of attorney holder cannot be a ground to transfer a proceeding (Mini Antony v. Savio Aruja)
In matrimonial transfers, the convenience of the woman and children is the primary consideration (Sumitha Sing v. Kumar Sanjay and another; cited with approval of Supreme Court)
Transfer of matrimonial disputes is long res-integra (catechized through cited precedents)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant (leading petitioner in Tr.P(C) No.475/2022) contends that the two children reside with him within the jurisdiction of the Pathanamthitta Family Court and that the first respondent is abroad; the second respondent (the respondent’s mother) resides with him. He seeks transfer of OP No.342/2021 from the Family Court, Kottarakkara, to Pathanamthitta to consolidate proceedings and to enable efficient adjudication consistent with the children’s welfare. He relies on Sec.24 CPC for discretionary transfer and relies on the settled law that the inconvenience to a power-of-attorney holder cannot justify transfer; the primary concern is the welfare and convenience of the children. He also suggests dispensation of personal appearance for the first respondent in Pathanamthitta. Respondents: The respondents argue that the transfer would impose hardship on the first respondent and her power-of-attorney holder, as she left the country in 2017 due to precarious financial conditions; the power-of-attorney arrangement is central to contesting OP(Div) 449/2020. They urge keeping the matter in the current forum or transferring only on proper grounds, stressing the need to protect the wife’s ability to participate and the family’s overall welfare, including the elderly mother’s interests.

Contentions of Respondents

Respondents reiterate hardship caused by the power-of-attorney arrangement and the wife’s foreign employment; they emphasize the need to protect the wife’s rights and avoid undue hardship to her father acting as POA; they also stress that the welfare of the children and the family’s financial constraints must guide any transfer decision.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Mini Antony v. Savio Aruja	2022 (3) KHC 42	Positive	Court held that inconvenience of the power of attorney holder cannot be a ground to transfer a proceeding.
Sumitha Sing v. Kumar Sanjay and another	2002 KHC 1889	Positive	Supreme Court held that convenience of the woman and children has to be looked into when transferring matrimonial cases.
Mona Aresh Goel v. Aresh Satya Goel	2000 KHC 1835	Positive	Cited as supporting the principle that convenience and welfare guide transfer decisions.
Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap	2016 KHC 6489	Positive	Cited for welfare-centric approach to transfer of matrimonial disputes.
Santhini V. Vijaya Venkatesh	2017 (5) KHC 48	Positive	Widely cited for the welfare of children and spouses in transfer decisions.
N.C.V Aishwarya v. A.S Saravana Karthik Sha	2022 (5) KHC 182	Positive	Cited to reinforce the convenience-and-welfare principle in transfer orders.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 Tr.P (C)Nos.475/2022 and 613/2021 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 TR.P(C) NO. 613 OF 2021 AGAINST THE ORDER/JUDGMENT OP 449/2020 OF FAMILY COURT, ``` ## **`PATHANAMTHITTA`** ## **`PETITIONER/S:`** ``` PREETHA VARGHESE, AGED 39 YEARS D/O. M. VARGESE, PANDARATHU HOUSE, PULAMON P.O., PULAMON VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 691 531. BY ADVS. RESHMI JACOB BOBY THOMAS PRIYADARSINI VINCENT ``` ## **`RESPONDENT/S:`** ``` JINU THOMAS, AGED 43 YEARS S/O. LATE THOMAS ABRAHAM, THACHANALIL HOUSE, ETTICHUVADU P.O., ANGADI VILLAGE, RANNY TALUK, PATHANAMTHITTA 689 675. BY ADVS. MANU RAMACHANDRAN M.KIRANLAL T.S.SARATH R.RAJESH (VARKALA) SAMEER M NAIR GEETHU KRISHNAN HARSHA SUSAN SAM ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022 along with trpc 475/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Tr.P (C)Nos.475/2022 and 613/2021 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 TR.P(C) NO. 475 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT OP 342/2021 OF FAMILY COURT, ``` ## **`KOTTARAKKARA`** ## **`PETITIONER/S:`** ``` JINU THOMAS,AGED 45 YEARS S/O LATE THOMAS ABRAHAM, THACHANALIL HOUSE, EATTICHUVADU P.O., ANGADI MURI, ANGADI VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT , PIN - 689676 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL T.S.SARATH R.RAJESH (VARKALA) SAMEER M NAIR HARSHA SUSAN SAM GEETHU KRISHNAN ``` ## **`RESPONDENT/S:`** ``` 1PREETHA VARGHESE,AGED 39 YEARS D/O M.VARGHESE, PANDARETHU VEEDU, MYLOM VILLAGE, PULAMON P.O, KOTTARAKKARA TALUK, KOLLAM DISTRICT , PIN - 691531 2MARIYAMMA THOMAS,AGED 65 YEARS W/O LATE THOMAS ABRAHAM, THACHANALIL HOUSE, EATTICHUVADU P.O., ANGADI MURI, ANGADI VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT , PIN – 689676 ``` ``` BY ADV RESHMI JACOB -R1 ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022 ALONG WITH TRPC 613/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Tr.P (C)Nos.475/2022 and 613/2021 ## **C.S DIAS,J.** **--------------------------Tr.P (C)Nos.613/2021 and 475/2022 ----------------------------Dated this the 10[th] day of November, 2022.** ## **COMMON ORDER** As the transfer petitions arise out of marital discord between Preetha Varghese (first respondent/wife) and Jinu Thomas (petitioner/husband) they are being disposed of by the common order. The parties are, for the sake of convenience, referred to as per their status in Tr.P(C)No.475/2022, which is treated as the leading case. 2. The common case of the petitioner in Tr.P(C) 475/2022 is that, he is husband of the first respondent. They have two children born in the wedlock. The second respondent is the mother of the petitioner. The marital relationship is strained. The first respondent is employed abroad since 2017. The petitioner filed OP (Div) 449/2020 before the Family Court, Pathanamthitta, against the first respondent, seeking a decree of divorce. 4 Tr.P (C)Nos.475/2022 and 613/2021 The children are in the custody of the petitioner. Immediately on receipt of notice in OP (Div) 449/2020, the first respondent filed OP No.342/2021, before the Family Court, Kottarakkara, against the petitioner and the second respondent, seeking a decree for return of patrimony and gold ornaments. It is the petitioner who is taking care of the children as well as his mother – second respondent. The first respondent is contesting both the proceedings through a power of attorney holder. Therefore, no inconvenience would be caused to her in OP 342/2021 being transferred to the Family Court, Pathanamthitta. 3. The first respondent has filed TrP(C)No.613/2021, inter alia, contending that due to the precarious financial conditions of the family, she was constrained to leave to Saudi Arabia in the year 2017, leaving the two children in the custody of the petitioner. Then the petitioner filed OP (Div) 449/2020, seeking a decree of divorce. The first respondent has executed a 5 Tr.P (C)Nos.475/2022 and 613/2021 power of attorney in favour of her father, who is a senior citizen, to contest the proceedings before the Family Courts. It would cause hardship to the first respondent and her power of attorney holder, if OP (Div) 449/2020 is not transferred. Hence, Tr.P(C) 613/2021. 4. The petitioner has filed a counter affidavit to Tr.P(C) 613/2021 reiterating the very same contentions as averred in Tr.P(C)No.475/2022. He has prayed that Tr.P(C) 613/2021 to be dismissed and Tr.P(C)No.475/2022 to be allowed. 5. Heard; Sri.Manu Ramachandran, the learned counsel appearing for the petitioner/husband and Smt.Reshmi Jacob, the learned counsel appearing for the first respondent/wife. 6. The question is which of the transfer petitions is to be allowed? 7. On going through the pleadings in the transfer petitions, the following admitted facts emerge: (1) The first respondent/wife is employed in Saudi Arabia. (2) The 6 Tr.P (C)Nos.475/2022 and 613/2021 petitioner is residing with the two children within the jurisdiction of the Family Court, Pathanamthitta. (3) The second respondent/mother of the petitioner is also residing with the petitioner. (4) The main ground projected by the respondent/wife to transfer OP (Div) 449/2020 is hardship and inconvenience of her power of attorney holder. (4) OP (Div) 449/2020 is pending before the Family Court, Pathanamthitta, for the last more than two years and the first respondent/wife is contesting the proceeding before the said Court. 8. This Court in **Mini Antony vs. Savio Aruja** [2022 (3) KHC 42] has succinctly held that inconvenience of the power of attorney holder cannot be a ground to transfer a proceeding from one Court to another. 9. The law with respect to transfer of no proceedings, particularly matrimonial disputes, is longer res-integra, in view of the categoric declaration of law by the Hon'ble Supreme Court in **Sumitha Sing V.** 7 Tr.P (C)Nos.475/2022 and 613/2021 **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 182]. The Hon’ble Supreme Court has held that 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. 10. Admittedly, the children are residing with the petitioner within the jurisdiction of the Family Court, Pathanamthitta and the first respondent is employed abroad and the second respondent is a 65 year old lady residing with the petitioner. Therefore, I am of the definite view that the convenience of the children have to be given due preference and weightage. In the above legal and factual background, I am inclined to exercise the discretionary powers of this Court under Sec.24 of 8 Tr.P (C)Nos.475/2022 and 613/2021 the Code of Civil Procedure in favour of the petitioner to meet to the convenience of the two children and the second respondent lady. In the result, I dispose of the transfer petitions in the following manner: (i) TrP(C)No.613/2021 is dismissed. (ii) Tr.P(C)No.475/2022 is allowed by ordering the transfer of OP No.342/2021 from the Family Court, Kottarakkara, to the Family Court, Pathanamthitta. (iii) The parties would be at liberty to move the Family Court, Pathanamthitta and seek for consolidation and joint trial of all the cases between them. (iv) The first respondent would be at liberty to move the Family Court, Pathanamthitta, and seek for dispensation of her personal appearance. (v) The Registry shall forward a copy of this order to the Family Court, Kottarakkara, with instructions 9 Tr.P (C)Nos.475/2022 and 613/2021 to forthwith transmit the records in OP 342/2021 to the Family Court, Pathanamthitta. (vi) The Family Court, Pathanamthitta, shall, immediately on receipt of the records in OP 342/2021, post the case along with OP(Div) No.449/2020. **SD/-** sks/10.11.2022 **C.S.DIAS, JUDGE** 10 Tr.P (C)Nos.475/2022 and 613/2021 ## **`APPENDIX OF TR.P(C) 613/2021`** ## `PETITIONER ANNEXURES` ``` Annexure A1TRUE COPY OF THE PETITION O.P. NO. 449/2020 ON THE FILES OF THE HONBLE FAMILY COURT, PATHANAMTHITTA FILED BY THE RESPONDENT. ``` ## `RESPONDENT ANNEXURES` ``` Annexure R(B)The true copy of the memorandum of Compromise Agreement entered between the parties in O.P (G W) No. 78 of 2021 on the files of Family Court, Kottarakkara Annexure R(A)The true copy of the proceedings vide no.CWC/KLM/7851/7852/21 dated 05.03.2021 of Child Welfare Committee, Kollam ``` 11 Tr.P (C)Nos.475/2022 and 613/2021 ## **`APPENDIX OF TR.P(C) 475/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure1THE TRUE COPY OF THE PROCEEDINGS VIDE NO.CWC/KLM/7851/7852/21 DATED 05.03.2021 OF CHILD WELFARE COMMITTEE, KOLLAM . Annexure A2THE TRUE COPY OF THE O.P NO.342/2021 ON THE FILES OF FAMILY COURT, KOTTARAKKARA FILED BY RESPONDENT-WIFE SEEKING REALIZATION OF PATRIMONY AND GOLD ORNAMENTS ```