TR.P(C) No. 314 of 2020 & Tr.P (Crl.) No. 38 of 2020

TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944 TR.P(C) NO. 314 OF 2020** **OP 470/2020 OF FAMILY COURT, KOTTAYAM** ## **PETITIONER/S:** DR.ABDUL SAMAD AGED 62 YEARS S/O. LATE KANJIKKAL MYTHEEN KUNJU, SELMA MANZIL HOUSE, NO.466/XII, KULASEKHARA PURAM GRAMA PANCHAYATH, KULASEKARA PURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPPALLY, PINCODE-690 544, NOW TEMPORARILY RESIDING AT IMARA , NEAR SHALIMAR CASHEW FACTORY, KULASEKHARAPURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPPALLY-690 544 BY ADVS. P.MARTIN JOSE SRI.S.SREEKUMAR (SR.) SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S. ## **RESPONDENT/S:** 1 SABEENA HANEEFA AGED 53 YEARS D/O. P.H.HANNEFA, PARKKAVETTY HOUSE, PERUNNA P.O., CHANGANASSERY, KOTTAYAM DISTRICT,PINCODE-686 102, NOW RESIDING AT SELMA MANZIL HOUSE, NO.466/XII, KULASEKHARA PURAM GRAMA PANCHAYATH, KULASEKARA PURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPPALLY, PIN CODE-690 54 2 DR.SAMEER ABDUL SAMAD, AGED 29 YEARS TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 2 S/O. DR. ABDUL SAMAD, SELMA MANZIL HOUSE, NO.466/XII, KULASEKHARA PURAM GRAMA PANCHAYATH, KULASEKARA PURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPPALLY, PINCODE-690 544, NOW TEMPORARILY RESIDING AT IMARA , NEAR SHALIMAR CASHEW FACTORY, KULASEKHARAPURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPPALLY-690 544 3 SELMA ABDUL SAMAD, AGED 30 YEARS D/O. DR.ABDUL SAMAD, SELMA MANZIL HOUSE, NO.466/XII, KULASEKHARA PURAM GRAMA PANCHAYATH, KULASEKARA PURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPPALLY, PINCODE-690 544, BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.ZAKHIER HUZZAIN THIS TRANSFER PETITION (C) HAVING COME UP FOR ADMISSION ON 10.06.2022, ALONG WITH Tr.P(Crl.).38/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944 TR.P(CRL.) NO. 38 OF 2020** ## **PETITIONER/S:** DR. ABDUL SAMAD AGED 62 YEARS S/O.LATE KANJIKKAL MYTHEEN KUNJU, SELMA MANZIL HOUSE NO.466/XII, KULASHEKHARA PURAM GRAMA PANCHAYATH, KULASHEKARA PURAM VILLAGE K.S.PURAM P.O., KARUNAGAPALLY,,PIN-690 544, NOW TEMPORARILY RESIDING AT IMARA, NEAR SHALIMAR CASHEW FACTORY, KULASHEKHARAPURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPPALLY-690 544. BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S. ## **RESPONDENT/S:** 1 SABEENA HANEEFA, AGED 53 YEARS D/O.P.H.HANNEFA, PARAKKAVETTY HOUSE, PERUNNA P.O., CHANGANASSERY, KOTTAYAM DISTRICT PIN-686 102, NOW RESIDING AT SELMA MANZIL HOUSE NO.466/XII,, KULASHEKHARA PURAM GRAMA PANCHAYATH, KULASHEKARA PURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPALLY, PIN690 544. 2 DR.SAMEER ABDUL SAMAD AGED 29 YEARS S/O.DR.ABDUL SAMAD, SELMA MANZIL HOUSE, TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 4 NO.466/XII, KULASHEKHARA PURAM GRAMA PANCHAYATH, KULASHEKARA PURAM VILLAGE K.S.PURAM P.O., KARUNAGAPALLY. PIN-690 544. NOW TEMPORARILY RESIDING AT IMARA NEAR SHALIMAR CASHEW FACTORY, KULASHEKHARAPURAM VILLAGE, K.S.PURAM P.O., KARUNAGAPPALLY-690 544. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.ZAKHIER HUZZAIN THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10.06.2022, ALONG WITH Tr.P(C).314/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 5 ## **COMMON ORDER** As these transfer petitions are between the same parties, they are being disposed of by this common order. 2. Tr.P(C) No.314/2020 is filed by the husband, under Section 24 of the Code of Civil Procedure, seeking to transfer OP No.470/2020 from the Family Court, Ettumanoor to the Family Court, Chavara. The respondents in the transfer petitions are his wife and children. Tr.P(Crl.) No.38/2020 is filed by the husband against the wife and children, under Section 407 of the Code of Criminal Procedure, seeking to transfer M.C.No.7/2020 from the Court of the Judicial First Class Magistrate, Changanasseri to the Court of the Judicial First Class Magistrate Court, Karunagappalli. The parties are, for the sake of convenience, referred to as per their status in Tr.P(C) No.314/2020. 3. The 1[st] respondent - wife - has filed OP TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 6 No.470/2020 (Annexure 1) before the Family Court, Ettumanoor, seeking decrees for declaration of title and declaration that the talaqu notices sent by the petitioner – husband - are null and void. The respondents 2 and 3 are the children of the petitioner and the 1[st] respondent. The 1[st] respondent has also filed MC No.7/2020 (Annexure 2) before the Judicial First Class Magistrate Court, Changanasseri, under the provisions of the Protection of Women from Domestic Violence Act, against the husband – petitioner and the children. In Annexure 2, the learned Magistrate has passed Annexure 3 order, granting the 1[st] respondent a residence and maintenance order. On the basis of Annexure 3, the 1[st] respondent is residing in the shared house hold at Karunagappally. No cause of action for filing Annexure 1 has arisen within the jurisdiction of the Family Court, Ettumanoor. The petitioner is a Pediatrician working in AM Hospital, Karunagappally. TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 7 The 2[nd] respondent is a Doctor pursuing his Post Graduation in New Delhi. The petitioner is suffering from various ailments. He will not be in a position to travel to Ettumanoor to contest the case. More over, since the petitioner and the 1[st] respondent are residing in Karunagappilly, no useful purpose would be served in having the proceedings conducted at Ettumaoor and Changanasseri. Hence, Annexures 1 and 2 may be transferred from the Family Court, Ettumanoor and Judicial First Class Magistrate Court, Changanasseri to the Family Court, Chavara and the Judicial First Class Magistrate Court, Karunagappilly, respectively. 4. The 1[st] respondent has filed a counter affidavit in Tr.P(Crl.) No.38/2020, interalia, contending that the petitioner has treated her with severe matrimonial cruelty. In the above circumstances, she was compelled to file Annexures 1 and 2. The petitioner has violated Annexure 3 order. The prosecution proceeding is TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 8 pending before the learned Magistrate. The petitioner’s sole intention is to avoid the prosecution proceeding. A person who has violated an order of the Court, shall not be shown any leniency. Even though the 1[st] respondent is residing at Karunagappally, she does not have any means. Therefore, it would be difficult for her to appear before the Courts at Chavara and Karunagappilly, as there is no person to chaperone her. On the other hand, if the cases are prosecuted at Ettumanoor and Changanasseri, her father would accompany her. Hence, the transfer petitions may be dismissed. 5. Heard; Sri. Prijith P., the learned counsel appearing for the petitioner and Sri.G.Sreekumar, the learned counsel appearing for the 1[st] respondent. Even though service is complete on the respondents 2 and 3, there is no appearance for them. 6. It is evident from Annexure 3 order passed by the learned Magistrate, that the petitioner and the TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 9 respondents 2 and 3 are restrained from dispossessing the 1[st] respondent from the shared house hold i.e., the house bearing No.466/XII in Kulasekharapuram Grama Panchayath, the petitioner is to pay the 1[st] respondent an amount of Rs.20,000/- and the petitioner and the 2[nd] respondent are restrained from committing any act of domestic violence or any sort of verbal or physical harassment to the 1[st] respondent until further orders. 7. A reading of Annexure 1 original petition would establish that the 1[st] respondent was all through out residing in the shared household, from the date of her marriage with the petitioner on 30.11.1986 till date. Thus the 1[st] respondent is a permanent resident of Karunagappally. Her sole contention in the counter affidavit is that, there is no persons to accompany her from her residence at Karunagappally to the Family Court, Chavara and the Judicial First Class Magistrate's Court, Karunagappilly. On the other hand, if the cases TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 10 are permitted to be prosecuted before the Courts they are pending now, her father would accompany her. It is also on record that the petitioner is a Doctor by profession and is now aged 64 years. 8. This Court in **Vidhya Mundekkat vs. Akhilesh Jayaram [** 2021 (6) KHC 506], has categorically held that there is no invariable rule that whenever a wife makes a request for transfer pointing out an inconvenience, this Court is obliged to exercise its powers under Section 24 of the Code of Civil Procedure. The same principle also apply when the wife opposes a transfer petition on the ground of inconvenience, and also under proceedings filed under Section 407 of the Code of Criminal Procedure. 9. On a comprehensive appreciation of the pleadings and materials on record, particularly the fact that the 1[st] respondent is residing in the shared household as per Annexure 3 at Karunagappally, which TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 11 is the same place where the petitioner is residing and the Courts are in close proximity to the residence of the parties, I am of the firm view that the petitioner has made out a case for ordering the transfer of Annexures 1 and 2, which would be convenient for both the petitioner and the 1[st] respondent. Therefore, I am inclined to exercise the discretionary powers of this Court, both under Section 24 of the Code of Civil Procedure and 407 of the Code of Criminal Procedure to order the transfer of Annexures 1 and 2. In the result: - i. Tr.P(C) No.314/2020 is allowed by ordering transfer of OP No.470/2020 from the Family Court, Ettumanoor to the Family Court, Chavara. - ii. Tr.P(Crl) No.38/2020 is allowed by ordering transfer of M.C. No.7/2020, and all applications including the application for prosecution, from the Judicial First Class Magistrate Court, TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 12 Changanasseri to the Judicial First Class Magistrate Court, Karunagappally. iii. The parties would be at liberty to move the Courts and seek dispensation of their personal appearance and for the video conferencing facility. Sd/- **C.S.DIAS, JUDGE** rkc/10.06.22 TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 13 ## **APPENDIX OF TR.P(CRL.) 38/2020** PETITIONER'S ANNEXURES ANNEXURE-1 TRUE COPY OF M.C.NO.7/2020 FILED BY THE 1ST RESPONDENT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANASSERY. ANNEXURE-2 TRUE COPY OF COMMON ORDER DATED 28/1/20 IN CMP NO.674/2020 AND CMP.NO.674(A) OF 2020 OF THE JFMC, CHANGANASSERY. ANNEXURE-3 TRUE COPY OF PETITION IN OP.NO.470/2020 BEFORE THE FAMILY COURT, ETTUMANOOR. TR.P(C) No. 314 & Tr.P (Crl.)No. 38 of 2020 14 ## **APPENDIX OF TR.P(C) 314/2020** PETITIONER'S ANNEXURES ANNEXURE-1 TRUE COPY OF PETITION IN O.P.NO.470 OF 2020 BEFORE THE FAMILY COURT, ETTUMANOOR ANNEXURE-2 TRUE COPY OF M.C.NO.7 OF 2020 FILED BY THE 1ST RESPONDENT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANASSERY ANNEXURE-3 TRUE COPY OF COMMON ORDER DATED 28.01.2020 IN C.M.P.NO.674 OF 2020 AND C.M.P.NO.674 (A) OF 2020 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANASSERY