High Court of KeralaSingle Judge2022-10-07Transfer petition disposed: denied; petitioners...

TR.P(C) NO. 206 OF 2022

Case / Petition Number:TR.P(C) NO. 206 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.Dias
Judgment Date: 2022-10-07
Court Decision / Holding: The transfer petition is declined. The petitioners may move the Family Court, Kattappana, to dispense with their personal appearance. If such an application is filed, the Family Court, Kattappana shall dispense with their personal appearance considering their age and ailments. The Family Court, Kattappana shall decide Annexure 1 in accordance with law.
Final Disposition: Transfer petition disposed: denied; petitioners may seek dispensation of personal appearance; Annexure 1 to be decided by Family Court, Kattappana in accordance with law.

Parties to the Case

Appellants / Petitioners

Jamal V.M
Jameela Jamal

Respondents

Ashifa Basheer
Jawahar Jamal

Legal Representation & Advocates

Counsels for Petitioners

• P.M. Rafeeq
• C. Abdul Rasac

Counsels for Respondents

• Surjith B Rahana Jose
• Lijo Joseph

Case Synopsis & Summary

This is a transfer petition under Section 24 of the Code of Civil Procedure filed in the High Court of Kerala (Ernakulam) by Jamal V.M and Jameela Jamal (the petitioners) seeking to transfer O.P. 181/2022 filed in the Family Court, Kattappana, to the Family Court at Thodupuzha. The underlying dispute arises from a matrimonial context between the respondents: Ashifa Basheer (wife of the 2nd respondent) and Jawahar Jamal (husband of the 1st respondent), with the petitioners being the parents of the 2nd respondent. The petitioners alleged that the Family Court, Kattappana is over 110 kilometers away from their residence, that both petitioners are elderly (60 and 52) and afflicted with illnesses, and that the 1st respondent has filed Annexure 1 seeking a decree for return of money and gold ornaments and resides in her parental home in Idukki, while the 2nd respondent is employed abroad. They argued transfer would alleviate inconvenience and ensure fair contest. The court references several Kerala High Court/Supreme Court authorities holding that the transfer of matrimonial disputes should consider the convenience of the woman and children, and notes that the law on transfer is no longer res integra. Ultimately, the court declines the transfer, while suggesting dispensation of personal appearance for the petitioners and directing the Family Court, Kattappana, to decide Annexure 1 in accordance with law.

Provisions of Law Cited

Section 24 of the Code of Civil Procedure (CPC)

Legal Doctrines & Maxims

Res Integra (resintegra) doctrine
Convenience of the woman and children as a guiding principle in transfer of matrimonial disputes

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the Family Court at Kattappana is over 110 km away, and given their advanced age and health issues, it would be extremely burdensome to contest Annexure 1 there. The 2nd respondent’s wife (1st respondent) has filed Annexure 1 against the 2nd respondent and the petitioners; they sought transfer to Thodupuzha to ensure convenience and fair contest, considering that the 1st respondent resides in Idukki and the 2nd respondent is abroad.

Contentions of Respondents

The respondents argued that transferring the proceedings would cause prejudice to the 1st respondent, who is young (23 years) and residing in her parental home; the underlying disputes are between the respondents, and the petitioners’ infirmities should not bar them from appearing if needed. They were represented by counsel for contesting the transfer and maintaining the existing forum.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Sumithra Sing V. Kumar Sanjay and another	2002 KHC 1889	Positive	Cited to support modern transfer jurisprudence focusing on convenience and welfare rather than rigid forum rules; endorses shifting considerations in matrimonial transfers.
Mona Aresh Goel V. Aresh Satya Goel	2000 KHC 1835	Positive	Used to reinforce that transfer considerations must reflect welfare and convenience, aligning with current doctrine.
Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap	2016 KHC 6489	Positive	Cited for principle that welfare concerns govern transfer of matrimonial disputes.
Santhini V. Vijaya Venkatesh	2017 (5) KHC 48	Positive	Used to support the evolving principle prioritizing the convenience of the woman and children in transfer cases.
N.C.V. Aishwarya v. A.S. Saravana Karthik Sha	2022 (5) KHC 185	Positive	Cited to align with contemporary transfer jurisprudence emphasizing welfare considerations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

TR.P(C) NO. 206 OF 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944 TR.P(C) NO. 206 OF 2022** **OP 181/2022 OF FAMILY COURT, KATTAPPANA** ## **PETITIONER/S:** 1 JAMAL V.M, AGED 60 YEARS, VALIYAPARAMBIL HOUSE, PEZHAKAPPILLY P.O, PEZHAKAPPILLY, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686673 2 JAMEELA JAMAL, AGED 52 YEARS, VALIYAPARAMBIL HOUSE, PEZHAKAPPILLY P.O, PEZHAKAPPILLY, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686673 BY ADVS. P.M.RAFEEK C.H.ABDUL RASAC ## **RESPONDENT/S:** 1 ASHIFA BASHEER, AGED 23 YEARS, KOTTACKAL HOUSE, CHENKARA P.O, PULLUMEDU KARA, AYYAPANKOVIL VILLAGE, IDUKKI TALUK, IDUKKI DISTRICT., PIN - 685573 2 JAWAHAR JAMAL, AGED 28 YEARS, VALIYAPARAMBIL HOUSE, PEZHAKAPPILLY P.O, PEZHAKAPPILLY, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686673 BY ADVS. SURJITH B RAHANA JOSE(K/000652/2015) LIJO JOSEPH(K/1131/2021) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) NO. 206 OF 2022 2 ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure, seeking to transfer O.P. No.181/2022 (Annexure 1) from the Family Court, Kattappana to the Family Court, Thodupuzha. 2. The petitioners' case, in brief, in the memorandum of transfer petition is that, they are the parents of the 2[nd] respondent. The 1[st] respondent is the wife of the 2[nd] respondent. The marital relationship between the respondents is strained. The 1[st] respondent has filed Annexure 1 against the 2[nd] respondent and the petitioners, seeking a decree for return of money and gold ornaments. The Family Court, Kattappana is more than 110 kilometers away from the residence of the petitioners. The 1[st] petitioner is aged 60 years and the 2[nd] petitioner is aged 52 years. Both of them are suffering from different ailments and undergoing treatment. The TR.P(C) NO. 206 OF 2022 3 1[st] respondent is residing in her parental home in Idukki District. The 2[nd] respondent is employed abroad. It would be difficult for the petitioners to contest Annexure 1 before the Family Court, Kattappana. Hence, the transfer petition. 3. Heard; Sri. P.M.Rafeek, the learned counsel appearing for the petitioners and Sri. B.Surjith, the learned counsel appearing for the 1[st] respondent. 4. The dispute between the parties arise out of the marriage between the respondents. Undisputedly, the 2[nd] respondent – husband of the 1[st] respondent is employed abroad. The 1[st] respondent is presently residing in her parental home in Ayyappankovil Village, Idukki Taluk within the jurisdiction of the Family Court, Kattappana. The principal ground urged for transfer is that the petitioners are old and infirm and it would be difficult for them to contest Annexure 1 before the Family Court, Kattappana. TR.P(C) NO. 206 OF 2022 4 5. The law with respect to transfer of proceedings, particularly matrimonial disputes, is no longer resintegra, 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 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. On an analysis of the pleadings and materials on record, it is undisputed that the 1[st] respondent is a 23 years old lady and is residing in her parental home. As the dispute in Annexure 1 is mainly between the respondents, and the reason for transfer is the age and TR.P(C) NO. 206 OF 2022 5 ill-health of the petitioners. I am of the view that their concern can be addressed by dispensing with their personal appearance rather than transferring Annexure 1 from the Family Court, Kattappana to the Family Court, Thodupuzha, which would cause severe prejudice and inconvenience to the 1[st] respondent. Thus, I am not inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure and order the transfer of Annexure 1. In the result, I dispose of the transfer petition as follows:- - (i) The request of the petitioners to transfer OP No.181/2022 from the Family Court, Kattappana to the Family Court, Thodupuzha is declined. - (ii) The petitioners would be at liberty to move the Family Court, Kattappana and seek for the dispensation of their personal appearance. If such an application is filed, the Family Court, TR.P(C) NO. 206 OF 2022 6 Kattappana shall, considering the age and ailments of the petitioners, dispense with the personal appearance of the petitioners unless it is necessary. (iii) The Family Court, Kattappana shall consider and dispose of Annexure 1, in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** rkc/07.10.22 TR.P(C) NO. 206 OF 2022 7 ## **APPENDIX OF TR.P(C) 206/2022** PETITIONER ANNEXURES |Annexure1|TRUE COPY OF O.P NO. 181/2022 DATED|TRUE COPY OF O.P NO. 181/2022 DATED| |---|---|---| ||02-03-2022 OF THE FAMILY|COURT| ||KATTAPPANA.|| |Annexure2|TRUE COPY OF DISCHARGE SUMMARY|OF THE| ||1ST PETITIONER DATED 28-06-2019|ISSUED| ||BY RAJAGIRI HOSPITAL, ALUVA.|| |Annexure3|TRUE COPY OF SCANNING REPORT OF|THE 1ST| ||PETITIONER DATED 28-08-2021 ISSUED FROM|| ||NEW AMMA SCANNING AND DIAGNOSTIC|CENTRE,| ||MUVATTUPUZHA.|| |Annexure4|TRUE COPY OF THE ADMISSION CARD|OF THE| ||1ST PETITIONER DATED 27-11-2006|ISSUED| ||FROM AMRITA INSTITUTE OF|MEDICAL| ||SCIENCE, ERNAKULAM|| |Annexure5|TRUE COPY OF THE ADMISSION CARD|OF THE| ||1ST PETITIONER ISSUED FROM|SABINE| ||HOSPITAL AND RESEARCH|CENTRE,| ||MUVATUPUZHA.|| |Annexure6|TRUE COPY OF THE ADMISSION CARD|OF THE| ||1ST PETITIONER DATED 14-02-2022|ISSUED| ||FROM CHARI'S MEDICAL|MISSION| ||HOSPITAL,MUVATTUPUZHA.|| |Annexure7|TRUE COPY OF THE PRESCRIPTION|TO 2ND| ||PETITIONER DATED 10-12-2021 ISSUED BY|| ||DR. G. LATHA.|| |Annexure8|TRUE COPY OF SCANNING REPORT|OF 2ND| ||PETITIONER DATED 20-12-2021 ISSUED BY|| ||ASCO DIAGNOSTIC CENTRE, MUVATTUPUZHA.|| |Annexure9|TRUE COPY OF THE PRESCRIPTION|TO 2ND| ||PETITIONER DATED 25-09-2021 ISSUED BY|| ||DR. GEETHA G. PILLAI.|| TR.P(C) NO. 206 OF 2022 8 |Annexure10|TRUE COPY OF THE PRESCRIPTION TO 2ND| |---|---| ||PETITIONER DATED 29-06-2021 ISSUED BY| ||DR. GEETHA G. PILAI.| |Annexure11|TRUE COPY OF THE PRESCRIPTION TO 2ND| ||PETITIONER DATED 28-10-2019 ISSUED BY| ||DR. GEETHA G. PILLAI.| |Annexure12|TRUE COPY OF THE PRESCRIPTION TO 2ND| ||PETITIONER DATED 26-09-2019 ISSUED BY| ||DR. GEETHA G. PILLAI.| |RESPONDENT EXHIBITS|| |EXHIBIT R1|TRUE COPY OF THE M.C.NO.53/2022 ON THE| ||FILES OF FAMILY COURT KATTAPPANA| |EXHIBIT R2|TRUE COPY OF THE O.P.NO.465/2022 ON THE| ||FILES OF FAMILY COURT KATTAPPANA|