TR.P(C) No. 676 of 2022 (Juliet v. Joseph Varghese)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944** **TR.P(C) NO. 676 OF 2022 AGAINST THE ORDER/JUDGMENTOP(RM) 548/2019 OF FAMILY COURT,** ## **KATTAPPANA** ## **PETITIONER/PETITIONER:** **JULIET AGED 43 YEARS THETTAYIL HOUSE, THEKKADY P.O.,THEKKADY KARA, KUMILY VILLAGE, PEERMADE TALUK, NOW RESIDING AT KALAPARAMBATHU HOUSE, OORAKAM VILLAGE, ARATTUPUZHA P.O., TRISSUR TALUK, TRISSUR DISTRICT, PIN - 680562 BY ADVS. K.S.ARUNDAS ABIJITH.K AMBILY JOSHY** ## **RESPONDENT/RESPONDENT:** **JOSEPH VARGHESE AGED 49 YEARS S/O VARGHESE, THETTAYIL HOUSE, THEKKADY P.O.,THEKKADY KARA, KUMILY VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT., PIN - 685509 BY ADVS. MADHU RADHAKRISHNAN NELSON JOSEPH(K/380/2007) M.D.JOSEPH(K/839/2008) DEEPAK ASHOK KUMAR(K/1624/2018)** ## **THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` TR.P(C) NO. 676 OF 2022 ``` ``` 2 ``` ## **ORDER** The transfer petition is filed under Sec.24 of the Code of Civil Procedure (in short Code), seeking to transfer O.P. (R.M.) No.548/2019 (Annexure 1) from the Family Court, Kattappana to the Family Court,Thrissur. 2. The petitioner’s case, shorn of exhaustive pleadings, relevant for the determination of the transfer petition is: she is the wife of the respondent. She has filed Annexure 1 against the respondent for a decree for return of money and gold ornaments. The marriage between the couple was solemnized on 23.06.2008 at St. Lourdes Church, Kumily. The respondent’s first wife passed away on 08.11.2007. He has two children born in his first marriage. The petitioner’s first husband died in a motor vehicle accident. She has a son born in her first marriage. The petitioner and respondent have no issues born in their marriage. The respondent had insisted the petitioner to borrow an amount of Rs.20,00,000/- from ``` TR.P(C) NO. 676 OF 2022 ``` ``` 3 ``` her brother, for his business purpose. The respondent filed O.P. Nos.44/2018 and 56/2018 against the petitioner before the Family Court, Kattappana, for an order for the custody of his children and a decree of divorce, respectively. Later, the petitioner filed Annexure 1 against the respondent before the same court. The petitioner is now residing in Thrissur, due to the cruelties meted out to her by the respondent. It is difficult for the petitioner to travel from Thrissur to Kattppana to contest Annexure 1. Hence the transfer petition. 3. The respondent has filed a counter affidavit denying the allegations in the transfer petition. It is his case that their marriage got ruined due to the extramarital relationship of the petitioner. The petitioner has misappropriated the money entrusted to her by the respondent. The petitioner has filed M.C.No.41/2017 against the respondent before the Gram Nyayalaya, Peerumade, invoking the provisions of the Protection of ``` TR.P(C) NO. 676 OF 2022 ``` ``` 4 ``` Women from Domestic Violence Act. The petitioner is contesting the proceeding before the said court. The petitioner had instigated the respondent’s daughter and got him implicated in a case registered under the Protection of Children from Sexual Offences, Act, 2012. This Court by Annexure R1 order quashed the proceedings. The petitioner was contesting O.P. No.56/2018 and 44/2018 before the Family Court, Kattappana. The Family Court, Kattappana has already dissolved the marriage between the petitioner and the respondent in O.P. No.56/2018. Thereafter, the Family Court has also allowed O.P. No.44/2018, granting the custody of the children to the respondent. The allegation that the petitioner is residing in Thrissur is absolutely false. She is contesting M.C.No.41/2017 before the Gram Nyayalaya, Peerumade. The respondent is taking care of his two children and is permanently residing in Idukki. It would be difficult for the respondent to travel all the way from Idukki to Thrissur to contest Annexure 1. Hence, ``` TR.P(C) NO. 676 OF 2022 ``` ``` 5 ``` the transfer petition may be dismissed. 4. Heard; Sri. K.S.Arun Das, the learned counsel appearing for the petitioner and Sri.Deepak Ashok Kumar, the learned counsel appearing for the respondent. 5. The question is whether Annexure 1 is to be transferred. 6. On an appreciation of the pleadings and materials on record, it is evident that the litigation between the parties started in the year 2018. The respondent had filed O.P. Nos.44/2018 and 154/2018 before the Family Court, Kattappana. Thereafter, the petitioner herself filed O.P.(R.M) No.548/2019 before the same court against the respondent. The parties have contested all the three cases before the same court for the last four years. 7. It is also on record that the petitioner has filed M.C. No.41/2017 before the Gram Nyayalaya, Peerumade, against the respondent under the provision ``` TR.P(C) NO. 676 OF 2022 ``` ``` 6 ``` of Protection of Women from Domestic Violence Act. 8. Now, the petitioner has approached this Court for the transfer of Annexure 1 from the Family Court, Kattappana to the Family Court, Thrissur, on the ground that she is suffering from various physical ailments. 9. Today, the petitioner has produced Annexures 2 to 4 documents. The medical certificate produced by the petitioner, issued by the said Doctor is not readable and is seen issued on 02.11.2022. All that can be gathered from the certificate is that the petitioner is suffering from early diabetics and cannot undertake frequent travel. I suspect the credibility of medical certificate as it is produced after the filing of the counter affidavit. I refrain from remarking any thing more on the sanctity of the certificate, except that it is tailor-made for the purpose of this case. 10. A Division Bench of this Court in **Vidya Mundekkat v. Akilesh Jayaram** [2021 (6) KHC 506] has categorically held that there is no invariable rule that ``` TR.P(C) NO. 676 OF 2022 ``` ``` 7 ``` whenever a wife makes a request pointing out her inconvenience, this Court is obliged to exercise its discretionary powers under Section 24 of the Code and order the transfer of one case to the another court. 11. In the case at hand, undisputedly, the petitioner had contested three proceedings before the Family Court, Kattappana. Two cases have already been decided against the petitioner. 12. The sole ground for seeking transfer is that the petitioner is suffering from ailments. The medical certificate produced does not inspire confidence in this Court to arrive at the above conclusion. Moreover, the two minor children of the respondent are in his custody as can be gathered from the pleadings on record and Annnexure R1 order passed by this Court. Thus, I am of the view that the convenience of the respondent has to be given due preference and weightage. Moreover, the petitioner is contesting M.C. No.41/2017 before the Gram Nyayalaya, Peerumade. Therefore, no ``` TR.P(C) NO. 676 OF 2022 ``` ``` 8 ``` inconvenience would be caused to the petitioner, if Annexure 1 is not transferred. Resultatntly, taking into account the peculiar facts and circumstances of the case, I am not inclined to exercise the discretionary powers of this Court under Section 24 of the Code in favour of the petitioner. The transfer petition fails and is dismissed. Sd/- **C.S.DIAS, JUDGE** rmm/13/12/2022 ``` TR.P(C) NO. 676 OF 2022 ``` ``` 9 ``` ## **`APPENDIX`** ``` PETITIONER ANNEXURES ANNEXURE1 ``` ``` ANNEXURE 2 ``` ``` ANNEXURE 3 ``` ``` ANNEXURE 4 ``` ``` RESPONDENT EXHIBITS EXHIBIT R1 ``` ``` A TRUE COPY OF O.P.(R.M) NO. 548/2019 PENDING ON THE FILE OF THE HONOURABLE FAMILY COURT, KATTAPPANA, IDUKKI. ``` ``` A TRUE COPY OF THE TREATMENT RECORDS ISSUED BY DR SREEKUMAR THEKKOOT. ``` ``` A TRUE COPY OF MEDICAL CERTIFICATE ISSUED BY DR SREEKUMAR T, ST VINCENT DE PAUL HOSPITAL, OLLUR THRISSUR ``` ``` A TRUE COPY OF IP DISCHARGE BILL DATED 05.11.2022 ISSUED BY ST VINCENT DE PAUL HOSPITAL THRISSUR ``` ``` TRUE COPY OF THE ORDER OF THIS HONORABLE COURT IN CRL.MC NO. 7959 OF 2019 DATED 18.11.2020 ```