## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938**
**Tr.P(C).No. 192 of 2016 () --------------------------OP 396/2015 of FAMILY COURT, KATTAPPANA -----**
**PETITIONER(S): -------------**
**JOJI VARGHESE AGED 34 YEARS, S/O.JOY INCHIPARAMBIL, INCHIPARAMBIL HOUSE, VAYATHOOR AMSOM, ULLIKKAL P.O., ULLIKKAL, KANNUR DISTRICT.**
## **BY ADV. SMT.SANGEETHA LAKSHMANA**
**RESPONDENT(S): --------------**
**SOUMYA.K.,**
**AGED 25 YEARS, D/O.GOPALAN, KADINJILIKKATTU HOUSE, KOCHERA P.O., KOCHERAKARA, ANAKKARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT.**
**BY ADV. SMT.G.KRISHNAKUMARI**
**THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-11-2016, ALONG WITH TPC. 193/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**bp**
## **Tr.P(C).No. 192 of 2016 ()**
## **APPENDIX**
## **PETITIONER'S ANNEXURES :**
|**ANNEXURE P1:**|**COPY OF THE OP 396/2015 ON THE FILE OF THE**|
|---|---|
||**HON'BLE FAMILY COURT, KOTTARAKKARA FILED BY**|
||**THE RESPONDENT HEREIN DT 16/12/2015.**|
|**ANNEXURE P2:**|**COPY OF THE COMPLAINT DT 25/5/2015 SUBMITTED**|
||**BY THE FATHER OF THE PETITIONER BEFORE**|
||**ULLIKKAL POLICE STATION AND THE RECEIPT**|
||**THEREUPON.**|
|**ANNEXURE P3:**|**COPY OF THE ANNEXURE P2 COMPLAINT DT 24/5/2015**|
||**SUBMITTED BY THE FATHER OF THE PETITIONER**|
||**BEFORE ULLIKKAL POLICE STATION.**|
|**ANNEXURE P4:**|**COPY OF THE COMPLAINT DT 25/5/2015 SUBMITTED**|
||**BY THE PETITIONER BEFORE ULLIKKAL POLICE**|
||**STATION AND THE RECEIPT THEREUPON.**|
|**ANNEXURE P5:**|**COPY OF THE ANNEXURE P4 COMPLAINT DT 25/5/2015**|
||**SUBMITTED BY THE PETITIONER BEFORE THE**|
||**ULLIKKAL POLICE STATION.**|
|**ANNEXURE P6:**|**COPY OF THE SETTLEMENT RECORD DT 6/6/2015.**|
|**ANNEUXRE P7:**|**COPY OF THE GO.P.541/2015 DT 22/6/2015 FILED**|
||**BY THE PETITIONER'S FATHER BEFOR THE HON'BLE**|
||**FAMILY COURT, KANNUR.**|
|**ANNEXURE P8:**|**COPY OF THE JUDGMENT DT 26/11/2015 OF THE**|
||**HONOURABLE FAMILY COURT, KANNUR IN**|
||**G.O.P.541/2015.**|
|**ANNEXURE P9:**|**COPY OF THE MARRIAGE CERTIFICATE DT 3/11/2011**|
||**ISSUED BY THE ARCHDIOCESE OF TELLICHERRY.**|
|**ANNEXURE P10:**|**COPY OF THE O.P.43/2016 DT 8/1/2016 FILED BY**|
||**THE PETITIONER BEFORE THE HON'BLE FAMILY**|
||**COURT, THALASSERY.**|
**RESPONDENT'S ANNEXURES : NIL.**
**//TRUE COPY//**
**P.A. TO JUDGE**
**bp**
## **K.RAMAKRISHNAN, J.**
------------------------------------------------------------
## **Tr.P.(C)Nos.192 of 2016 & 193 of 2016**
----------------------------------------------------
_Dated this the 1[st] day of November, 2016_
## **COMMON ORDER**
These petitions have been filed by the husband and his father respecptively for transfer of cases pending as O.P.396/2015 and O.P.397/2015, both before the Family Court, Kattappana to Family Court, Thalassery under Section 24 of the Code of Civil Procedure.
2. The common case of both these petitions was that, the sole respondent in both these cases is the wife of the petitioner in Tr.P.(C)No.192/2016 and first petitioner in Tr.P.(C)193/2016 and 2[nd] petitioner in Tr.P.(C)193/2016 is the father of the husband of the sole respondent in these cases. The marriage between the petitioner in Tr.P.(C)192/2016 and first petitioner in Tr.P.(C) 193/2016 with the respondent was solemnised on 23.02.2008 and three children were born to them in that wedlock. According to the petitioners, in both these cases, respondent eloped with somebody leaving the children with the husband and on the basis of a complaint filed by the father of the husband before the Ulickal police station evidenced by Annexures-A2 and A3 acknowledged by Exts.A4 and A5, they were traced out, but she did not want to come with the petitioner. The respondent along with her mother came to the police station and filed a complaint to the police to take custody of three minor children. The parents of the husband went to the
_**Tr.P.(C)Nos.192 of 2016 & 193 of 2016**_
2
police station along with children and a settlement was recorded evidenced by Ext.P6. Thereafter as per the settlement, the minor children were entrusted to the grand parents who are looking after the welfare of the children along with the husband. The grand father of the children filed G.O.P.541/2015 before the Family Court, Kannur for permanent custody of the children evidenced by Annexure-P7 and the matter was settled between the parties and the children were given to the paternal grand father and on the basis of the mediation settlement, the case has been disposed of evidenced by Ext.P8. The respondent filed M.C.100/2015 for maintenance and O.P.(Div.)396/2016 for dissolution of the marriage and O.P.397/2015 for return of gold ornaments and money before the Family Court, Kattappana. The husband filed O.P.43/2016 before Family Court, Thalassery for dissolution of marriage. The father of the husband was also added as a party in O.P.397/2015. They are finding it difficult to go to Kattappana to conduct the case. So the petitioners filed these two petitions to transfer O.P.396/2015 and 397/2015, both pending before the Family Court, Kattappana to Family Court, Thalassery where O.P.46/2016 filed by the husband against the respondent is pending. Hence these petitions.
3. Heard Smt.Sangeetha Lakshmana, counsel appearing for the petitioner and Smt.Krishnakumari, counsel appearing for the respondent.
_**Tr.P.(C)Nos.192 of 2016 & 193 of 2016**_
3
4. The counsel for the petitioner submitted that there were earlier proceedings between the parties regarding the custody of the children before the Family Court, Kannur and that was settled and she did not conduct the case later and so it was disposed of in favour of the paternal grand father, granting permanent custody of the children to the paternal grand father. It is thereafter that the wife filed O.P.396/2015 and 397/2015 before the Family Court, Kattappana with a view to harass the petitioners. Further the maintenance case filed by the wife against the husband that is pending before Family Court, Kattappana. According to the learned counsel, the husband has to go to Family Court, Kattappana with three children and he is working as a daily wages driver and it is difficult for him to go to Kattappana to conduct the case. Since he has already filed a petition for divorce before the Family Court Thalassery, if these two cases are transferred, it will be convenient for both the parties to conduct the case from one court.
5. On the other hand, the counsel for the respondent submitted that, she is a lady without any employment and income and she filed two cases before the Family Court, Kattappana, apart from that maintenance case was also filed, though a petition was filed by the petitioner herein to transfer that case to Thalassery that was dismissed by this court. It is difficult for her to go to Thalassery to conduct the case.
_**Tr.P.(C)Nos.192 of 2016 & 193 of 2016**_
4
6. It is an admitted fact that the petitioner in Tr.P.(C) 192/2016 and first petitioner in Tr.P.(C)193/2016 is the husband of the sole respondent in both the cases and 2[nd] petitioner in Tr.P.C193/2016 is the father of the husband. It is also an admitted fact that the marriage was solemnized in the year 2008 and three children were born to them in that wedlock and after some time, according to the husband, the respondent eloped with somebody and on the basis of the complaint filed by the father of the husband, she was traced out and produced and later she left the matrimonial home according to her own volition as she was not willing to come and reside along with the husband. Thereafter she moved the police for custody of the children and a settlement was arrived at from the police station that till the dispute is resolved from court, the children will be with the paternal grandfather. Thereafter the paternal grandfather who is the 2[nd] petitioner in Tr.P.(C).No.193/2016 filed a petition for permanent custody of the children before the Family Court, Thalassery as GOP.No.541/2015 and the custody of the children was given to the paternal grandfather who is the second petitioner in Tr.P.(C).No.193/2016. It is thereafter that the wife filed OP.No.396/2015 for divorce against the husband and OP.No.397/2015 against the husband and his father for return of gold ornaments, both before the Family Court, Kattappana. It is
_**Tr.P.(C)Nos.192 of 2016 & 193 of 2016**_
5
also in a way admitted that the wife filed MC.No.100/2015 for maintenance against the husband under section 125 of the Code of Criminal Procedure before the Family Court, Kattappana and though a petition has been filed to transfer that case to the Family Court, Thalassery, that was dismissed by this court as submitted by the counsel for the respondent. This is evidenced by the order in Tr.P.(Crl).No.29/2016 dated 28.9.2016. It is an admitted fact that after the disposal of the guardian petition before the Family Court, Thalassery, the present two petitions namely OP.Nos.396/2015 and 397/2015 were filed by the wife before the Family Court, Kattappana and it is thereafter that OP.No.46/2016 was field by the husband against the wife for dissolution of marriage before the Family Court, Thalassery. The husband had filed OP.No.43/2016 for the same relief claimed by the wife in OP.No.396/2015 before the Family Court, Kattappana in Family Court, Thalassery. A maintenance case has already been filed by the wife against the husband which is pending before the Family Court, Kattappana and a petition to transfer that case was dismissed by this court, which was submitted by the counsel for the respondent but that was not denied by the counsel for the petitioner and evidenced by the order in Tr.P.(Crl.No.29/2016 dated 28.9.2016, attached for perusal. Asking a lady, who is without any employment, and earlier filed two petitions before the
_**Tr.P.(C)Nos.192 of 2016 & 193 of 2016**_
6
Family Court, Kattapana, to go to Thalassery to conduct the case filed by the husband at a later point of time will cause unnecessary hardship to her. The second petitioner in Tr.P.(C).No.193/2016 can be represented by a counsel or by his son who is the husband of the respondent. There is no dispute regarding the dictum laid down in the decision reported in _**Anindita Das v. Srijit**_
_**Das**_ (2006 KHC 1887). Even in that case it has been held by the Hon'ble Supreme Court that the facts of the case will have to be considered in each case while considering the question of transfer. The Apex Court also did not vary from the earlier proposition of law laid down regarding transfer of matrimonial cases to the place of convenience of the wife.
So considering the circumstances, this court feels that there is no merit in the petition submitted by the petitioners seeking transfer of the cases filed by the wife to the Family Court, Thalassery and this court do not find any reason to allow the prayer as it will cause unnecessary hardship to a woman who is without any support. So under such circumstances, the prayer in these petitions is liable to be dismissed.
In the result, these petitions are dismissed.
## **Sd/-**
## **K. RAMAKRISHNAN, JUDGE.**
ss&cl
