Tr.P(C) 457/2020 and connected cases (Ajith M.T. v. Nimi d/o Jose; connections: Tr.P(C) 55/2021, Tr.P(C) 63/2021)

_**Tr.PC.457/2020 and connected cases**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943** **TR.P(C) NO. 457 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OP 415/2020 OF FAMILY** **COURT,THRISSUR, THRISSUR** ## **PETITIONER/S:** 1 DR. AJITH M.T AGED 34 YEARS S/O.THOMAS, MANKUZHA HOUSE, REYON PURAM P.O., PIN-683 543, CHELAMATTOM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT 2 THOMAS AGED 66 YEARS S/O.CHACKO, MANKUZHA HOUSE, REYON PURAM P.O., PIN-683 543, CHELAMATTOM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT 3 LEENA AGED 64 YEARS W/O.THOMAS, MANKUZHA HOUSE, REYON PURAM P.O., PIN-683 543, CHELAMATTOM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT 4 ANMARIYA (MINOR) AGED 4 YEARS D/O.DR.AJITH AND NIMI JOSE WAS RESIDING AT MUTTIKKAL HOUSE, PULLAZHI VILLAGE, THRISSUR TALUK-680012 AT PRESENT RESIDING AT MANKUZHA HOUSE, REYON PURAM P.O., PIN-683 543, CHELAMATTOM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT REP. BY HER FATHER AND GUARDIAN DR.AJITH M.T., S/O.THOMAS, AGED 34 YEARS, MANKUZHA HOUSE, REYON PURAM P.O., PIN-683 543, CHELAMATTOM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT 5 ANGEL AJITH (MINOR) AGED 3 YEARS D/O.DR.AJITH AND NIMI JOSE WAS RESIDING AT MUTTIKKAL HOUSE, PULLAZHI VILLAGE, THRISSUR TALUK-680012 AT PRESENT RESIDING AT MANKUZHA HOUSE, REYON PURAM P.O., _**Tr.PC.457/2020 and connected cases**_ 2 PIN-683 543, CHELAMATTOM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT REP. BY HER FATHER AND GUARDIAN DR.AJITH M.T., S/O.THOMAS, AGED 34 YEARS, MANKUZHA HOUSE, REYON PURAM P.O., PIN-683 543, CHELAMATTOM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT BY ADVS. DR. AJITH M.T(Party-In-Person) SHRI.INNOCENT FRANCIS PAPALI ## **RESPONDENT/S:** NIMI D/O.JOSE, AGED 30 YEARS, MUTTIKKAL HOUSE, PULLAZHI VILLAGE, THRISSUR TALUK-680012 BY ADV SRI.VIVEK VENUGOPAL THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.7.2021, ALONG WITH Tr.P(C).55/2021, 63/2021, THE COURT ON 20.07.2021 DELIVERED THE FOLLOWING: _**Tr.PC.457/2020 and connected cases**_ 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943 TR.P(C) NO. 55 OF 2021** **AGAINST THE ORDER/JUDGMENT IN GOP 662/2019 OF FAMILY COURT, MUVATTUPUZHA, ERNAKULAM** ## **PETITIONER/S:** 1 NIMI AGED 31 YEARS D/O E.M A JOSE, ELUVATHINKAL MUTTICHIL HOUSE, CHETTUPUZHA, PULLAZHI VILLAGE (POST), THRISSUR DISTRICT-680 012, NOW RESIDING AT KELATH SIGNATURE APARTMENTS, GROUND FLOOR, AG-1, MINALUR, ATHANI, THRISSUR DISTRICT, PIN-680 581. 2 JOSE E.M.A, S/O ANTONY, ELUVATHINKAL MUTTICHIL HOUSE, CHETTUPUZHA, PULLAZHI VILLAGE (POST), THRISSUR DISTRICT-680 012. 3 FLOWER JOSE, W/O JOSE E.M.A, ELUVATHINKAL MUTTICHIL HOUSE, CHETTUPUZHA, PULLAZHI VILLAGE (POST), THRISSUR DISTRICT-680 012. BY ADVS. N.P.PRAJEESH SRI.VIVEK VENUGOPAL ## **RESPONDENT/S:** AJITH M.T. AGED 35 YEARS S/O THOMAS, MANKUZHA HOUSE, CHELAMATTOM VILLAGE,KUNNATHUNADU TALUK,M POST REYON PURAM, ERNAKULAM-695 543. BY ADV SHRI.INNOCENT FRANCIS PAPALI _**Tr.PC.457/2020 and connected cases**_ 4 THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON, ALONG WITH Tr.P(C).457/2020 AND CONNECTED CASES, THE COURT ON 20.07.2021 DELIVERED THE FOLLOWING: _**Tr.PC.457/2020 and connected cases**_ 5 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943 TR.P(C) NO. 63 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OP 460/2019 OF FAMILY COURT, MUVATTUPUZHA, ERNAKULAM** ## **PETITIONER/S:** NIMI AGED 31 YEARS D/O. E.M.A. JOSE, ELUVATHINKAL MUTTICHIL HOUSE, CHETTUPUZHA, PULLAZHI, VILLAGE (POST), THRISSUR DISTRICT 680 012. NOW RESIDING AT KELATH SIGNATURE APARTMENTS, GROUND FLOOR, AG-1, MINALUR, ATHANI, THRISSUR DISTRICT 680 581. BY ADV VIVEK VENUGOPAL ## **RESPONDENT/S:** AJITH M.T. AGED 35 YEARS S/O. THOMAS, MANKUZHA HOUSE, CHELAMATTOM VILLAGE, VALLAM JUNCTION, KUNNATHUNADU TALUK, POST REYON PURAM, ERNAKULAM 693 543. BY ADV SHRI.INNOCENT FRANCIS PAPALI THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.07.2021, ALONG WITH Tr.P(C).457/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**Tr.PC.457/2020 and connected cases**_ 6 ## **V.G.ARUN, J.** ## **----------------------------------------------Tr.P.(C).Nos. 457 of 2020 & Tr.P.(C).Nos.55 and 63 of 2021 ----------------------------------------------Dated this the 20[th] day of July, 2021** ## **O R D E R** The spouses, both of whom are doctors, are at loggerheads with each other and have resorted to legal remedies. The husband has filed O.P.No.460 of 2019 and O.P.(G&W).No.662 of 2019 before the Family Court, Muvattupuzha for restitution of conjugal rights and for declaration of guardianship and custody of the minor children. The wife has filed M.C.No.639 of 2019 and O.P.No.415 of 2020 before the Family Court, Thrissur seeking maintenance for the children and for recovery of money due towards their past maintenance. Tr.P.(C).No.457 of 2020 is filed by the husband to transfer O.P.No.415 of 2020 from the Family Court, Thrissur to the Family Court, Muvattupuzha and Tr.P.(C).Nos. 55 and 63 of 2021 by the wife, seeking to transfer O.P.Nos.460 and 662 of 2019 from the Family Court, Muvattupuzha to the Family Court, Thrissur. ## 2. The essential facts are as under; The marriage between the parties was solemnized on 26.2.2014. They have two children, now aged 6 and 5. As per the order in I.A.No.7 _**Tr.PC.457/2020 and connected cases**_ 7 of 2020 in O.P(G&W).No.662 of 2019 of the Family Court, Muvattupuzha, the husband is granted custody of the children and the wife is given visitorial rights. Both parties had approached this court earlier. The husband, seeking expeditious disposal of O.P.Nos.460 and 662 of 2019 and the wife, seeking transfer of the cases filed by the husband. The original petitions filed by the husband were disposed of _vide_ judgments dated 11.09.2020 and 18.09.2020, directing the Family Court, Muvattupuzha to dispose O.P.Nos.460 and 662 of 2019 within six months. The wife and her parents sought review of those judgments, contending that the original petitions were disposed without noticing the pendency of Tr.P.C.No.674 of 2019 filed by the review petitioners. The review petitions were disposed of, clarifying that the direction to dispose O.P.Nos.662 and 460 of 2019 would take within its sweep and purport any court to which those cases may subsequently be transferred. Thereafter, Tr.P.C.No.674 of 2019 filed by the wife was dismissed on the premise that, allowing the prayer for transfer would invariably cause delay in the disposal of the cases pending before the Family Court, Muvattupuzha and thereby result in upsetting the direction to dispose those cases within six months. The fact that the children are in the custody of the husband and living within the jurisdiction of the Family Court, Muvattupuzha was also taken note of. The transfer petitioners were given liberty to file fresh application for _**Tr.PC.457/2020 and connected cases**_ 8 transfer on production of necessary materials/documents showing that the children are staying with the wife and studying in a school or kindergarten in Thrissur. 3. The wife and parents have filed instant transfer petitions asserting that the children are living with them and the elder child is studying in a School in Thrissur. Learned counsel for the wife submitted that the assertion is founded on two documents, a letter dated 7.9.2020 from the Headmistress of JMJEM School, Thrissur stating that the child Ann Maria is not doing her homework and not attending classes and the second, the school fees receipt of the elder child. The FIR in Cr. No. 617 of 2020, registered at the Wadakkancherry Police Station against the husband for offences under Sections 341 and 323 IPC for having assaulted the wife and father, is relied on to contend that they apprehend hurt at the hands of the husband, compelled to appear before the Family Court at Muvattupuzha. Precedents are cited to contend that in transfer petitions arising out of matrimonial disputes, convenience of the wife should be preferred over that of the husband. 4. The assertions of the wife, of the children being with her and the elder child studying in Thrissur are stoutly opposed by the learned counsel for the husband. The documents produced by the wife are termed as self-serving documents. Relying on the interim order _**Tr.PC.457/2020 and connected cases**_ 9 directing the wife to hand over custody of the children to the husband, it is contended that nothing further is required to prove the residence of the children. Moreover, Annexures R1(q) to R1(t) documents produced in Tr.P.(C).No.55 of 2021 would show that the children are studying in the Viswajyothi C.M.I Public School, Angamaly. It is argued that this Court has permitted the wife to file fresh transfer petition only in the event of the children being with her at Thrissur and the elder child studying in the school at Thrissur. It is argued that there being no change of circumstance with respect to the residence and custody of the children after the order in Tr. P(C) No. 674 of 2019, the transfer petitions filed by the wife are liable to be rejected. As regards registration of the crime against the husband, it is submitted that the wife and her father were the aggressors and a crime has been registered against them on the husband's complaint. It is contended that the wife has to appear before the Family court, Muvattupuzha in the original petitions filed by the husband and hence, she will not be put to any inconvenience by her case being transferred. On the other hand, the transfer will only benefit the parties, as multiplicity of proceedings and divergent decisions can be avoided. 5. I find substance in the husband’s objection against maintainability of the transfer petitions filed by the wife. While dismissing Tr.P(C).No. 674 of 2019 filed by her earlier, this Court had _**Tr.PC.457/2020 and connected cases**_ 10 ## observed as follows; _“12. In the aforesaid circumstances, I find that the prayer for transferring the two cases mentioned above from the Family Court, Muvattupuzha to the Family Court, Thrissur cannot be allowed. However, if the petitioners could produce necessary materials to show that the children are staying with the first petitioner and that the elder child is studying in any school or kindergarten in Thrissur, in the interests of the welfare of the children, the petitioners can be given liberty to file fresh application for transfer of the cases._ _13. Consequently, the petition is dismissed. However, the petitioners are at liberty to file fresh application for transfer of the cases to the appropriate court on producing necessary materials/documents to show that the children are staying with the first petitioner and that the elder child is studying in any school or kindergarten in Thrissur.”_ 6. Indisputably, the interim order granting custody of the children to the husband is still in force and therefore, the contention of the wife, of the children being in her custody and care, cannot be accepted. The documents produced by the wife in support of that convention fails to inspire confidence when pitted against the documents produced by the husband. As there is no change of circumstance with respect to the custody and residence of the children after the order in Tr.P.(c) No.674 of 2019, granting relief in the transfer petitions filed by the wife will amount to review of the judgment in Tr.P.C.No.674 of 2019. _**Tr.PC.457/2020 and connected cases**_ 11 7. As far as the transfer petition filed by the husband is concerned, the wife, who has filed the original petition sought to be transferred, being the _dominus litis_ , the forum chosen by her cannot be changed for the mere asking. Other than convenience of the parties, no ground has been raised in support of the prayer for transfer. As has been held by this Court in _**Divya J.Nair v. S.K.Sreekanth**_ [2018 (4) KHC 520], convenience of parties will not confer jurisdiction on a court. The original petition filed by the husband being for custody and restitution of conjugal rights and that of the wife, for return of gold ornaments and money, the matter in issue is also not the same. This Court has directed the Family Court, Muvattupuzha to dispose O.P.Nos.460 and 662 of 2019 in a time bound manner. Transfer of the wife's original petition and tagging it along with the pending cases will delay disposal of the cases. Hence, the husband’s prayer for transfer is also rejected. In the result, Tr.P.(C).Nos.457 of 2020 and 55 and 63 of 2021 are dismissed. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**Tr.PC.457/2020 and connected cases**_ 12 ## **APPENDIX OF TR.P(C) 55/2021** PETITIONER ANNEXURE ANNEXURE IV TRUE PHOTOCOPY OF THE LETTER DATED 7.9.2020 ISSUED BY THE HEAD MISTRESS, J.M.J.E.M SCHOOL, THANI THRISSUR DATED 7..9.2020 ANNEXURE V TRUE PHOTOCOPY OF THE RECEIPT DATED 14.9.2020 ISSUED FROM THE J.M.J.E.M SCHOOL ATHANI THRISSUR ANNEXURE VI TRUE PHOTOCOPY OF THE CERTIFICATE DATED 30.6.2020 ISSUED BY THE SENIOR INTERNATIONAL CARDIOLOGIST, SUN MEDICAL AND RESEARCH CENTRE, THRISSUR ANNEXURE VII TRUE PHOTOCOPY OF THE FIRST INFORMATION REPORT IN CRIME NO 617/2020 OF WADAKKANCHERRY POLICE STATION DATED 27.6.2020 ANNEXURE 1 TRUE PHOTOCOPY OF GO.P NO 662/2019 DATED 16.9.2019 ANNEXURE 11 TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN TRANSFER PETITION NO 674/2019 DATED 9.10.2020 ANNEXURE 111 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE HEAD MISTRESS J.M.J.E.M SCHOOL, ATHANI THRISSUR DATED 9.10.2020 _**Tr.PC.457/2020 and connected cases**_ 13 ## **APPENDIX OF TR.P(C) 63/2021** PETITIONER ANNEXURE ANNEXURE 1 TRUE PHOTOCOPY OF O.P. NO. 460/2019 DATED 24.06.2019. ANNEXURE II TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HONBLE COURT IN TRANSPORT PETITION NO.674 / 2019DATD 9.10.2020. ANNEXURE III TRUE PHOTOCOPY OF CERTIFICATE ISSUED BY THE HEAD MISTRESS, J.M.J.E.M SCHOOL, ATHANI, THRISSUR DATED 9.10.2020. ANNEXURE IV TRUE PHOTOCOPY OF THE LETTER DATED 07.09.2020 ISSUED BY THE HEAD MISTRESS, J.M.J.E.M. SCHOOL, ATHANI, THRISSUR DATED 07.09.2020. ANNEXURE V TRUE PHOTOCOPY OF THE RECEIPT DATED 14.09.2020 ISSUED FROM THE J.M.J.E.M. SCHOOL, ATHANI, THRISSUR. ANNEXURE VI TRUE PHOTOCOPY OF THE FIRST INFORMATION REPROT IN CRIME NO. 617/2020 OF WADAKKANCHERRY POLICE STATION DATED 27.06.2020. _**Tr.PC.457/2020 and connected cases**_ 14 ## **APPENDIX OF TR.P(C) 457/2020** PETITIONER ANNEXURE ANNEXURE A1 A TRUE COPY OF THE JUDGMENT IN O.P.(FC) NO.309/2020 DATED 11.9.2020 OF THIS HON'BLE COURT ANNEXURE A2 A TRUE COPY OF THE JUDGMENT IN O.P.(FC) NO.323/2020 DATED 18.9.2020 OF THIS HON'BLE COURT ANNEXURE A3 A TRUE COPY OF THE COMMON ORDER IN R.P.NO.729/2020 IN O.P.F.CNO.323/2020 AND R.P.NO.730/2020 IN O.P.(FC)NO.309/2020 DATED 8.10.2020 OF THIS HON'BLE COURT ANNEXURE A4 A TRUE COPY OF THE ORDER IN TR.P.CNO.674/2019 DATED 09/10/2020 ANNEXURE A5 A TRUE COPY OF THE PETITION IN O.P.NO.415/2020 ON THE FILES OF FAMILY COURT THRISSUR