Tr.P.(C) Nos.40/2021, 110/2021 & Tr.P.(Crl.) No.9/2021; OP 1675/2020; OP 854/2020; GOP 1693/2020; MC 79/2020, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 TR.P(C) NO. 40 OF 2021** **OP 1675/2020 OF FAMILY COURT,ERNAKULAM, ERNAKULAM PETITIONER/S:** SALABHAM SUNIL AGED 28 YEARS W/O.VISHNU, UDHYANAM CHANGANKULANGARA, OACHIRA P.O., KARUNAGAPPALLY, KOLLAM DISTRICT-690 526. BY ADVS. P.BIJIMON SRI.JACOB SAMUEL SHRI. ABDUL JABBARUDEEN.M SRI.K.T.SEBASTIAN SMT.P.GEENA BABU SMT.PRIYA SREEDHARAN ## **RESPONDENT/S:** 1 VISHNU AGED 30 YEARS S/O.SASIDHARAN, SOWPARNIKA, VENNALA P.O., PALARIVATTOM, ERNAKULAM-682 028. 2 KRISHAVENI, AGED 36 YEARS D/O.SUDHARMA, CHALACKAL HOUSE, PALLIPURAM P.O., MALA, POIYA VILLAGE, THRISSUR DISTRICT, PIN-680 732. 3 SUDHARMA, AGED ABOUT 60 YEARS, W/O.SIVAGIRI, SOWPARNIKA, VENNALA P.O., PALARIVATTOM, ERNAKULAM-682 028. BY ADVS. SRI.MATHAI VARKEY MUTHIRENTHY SMT.ANITHA MATHAI MUTHIRENTHY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, ALONG WITH Tr.P.C 110/2021 & Tr.P(Crl) 9/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 TR.P(C) NO. 110 OF 2021** **OP 854/2020 OF FAMILY COURT, CHAVARA, KOLLAM** ## **PETITIONER/S:** 1 SUDHARMA AGED 61 YEARS, W/O.SIVAGIRI, SOWPARNIKA, VENNALA P.O., PALARIVATTOM, ERNAKULAM-682028. 2 KRISHNAVENI, AGED 36 YEARS, D/O.SASIDHARAN, SOWPARNIKA, VENNALA P.O., PALARIVATTOM, ERNAKULAM-682028. 3 VISHNU, AGED 30 YEARS, S/O.SASIDHARAN, SOWPARNIKA, VENNALA P.O., PALARIVATTOM, ERNAKULAM-682028. BY ADV ANITHA MATHAI MUTHIRENTHY **RESPONDENT/S:** SALABHAM SUNIL, AGED 28 YEARS W/O.VISHNU, UDHYANAM, CHANGANKULANGARA, OACHIRA P.O., KARUNAGAPPALLY, KOLLAM-690526. BY ADVS. SRI.P.BIJIMON SHRI. ABDUL JABBARUDEEN.M SRI.JACOB SAMUEL SRI.K.T.SEBASTIAN SMT.P.GEENA BABU SRI.P.V.VENUGOPAL SMT.PRIYA SREEDHARAN SRI.N.SURESH **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, ALONG WITH Tr.P.C 40/2021 & Tr.P(Crl) 9/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -3- ## **THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 TR.P(CRL.) NO. 9 OF 2021** **MC 79/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,** ## **KARUNAGAPPALLY, KOLLAM** ## **PETITIONER/S:** 1 SUDHARMA AGED 61 YEARS W/O. SIVAGIRI, SOWPARNIKA, VENNALA P.O., PALARIVATTOM, ERNAKULAM-682028. 2 KRISHNAVENI, AGED 36 YEARS D/O. SASIDHARAN, SOWPARNIKA, VENNALA P.O., PALARIVATTOM, ERNAKULAM-682028. 3 VISHNU, AGED 30 YEARS, S/O. SASIDHARAN, SOWPARNIKA, VENNALA P.O., PALARIVATTOM, ERNAKULAM-682028. BY ADV ANITHA MATHAI MUTHIRENTHY **RESPONDENT/S:** SALABHAM SUNIL AGED 28 YEARS, W/O.VISHNU, UDHYANAM, CHANGANKULANGARA, OACHIRA P.O., KARUNAGAPPALLY, KOLLAM-690526. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, ALONG WITH Tr.P.C 40//2021 & Tr.P(Crl) 9/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -4- ## **ORDER** Dated this the 21[st] day of October, 2021 **The spouses are at loggerheads and have resorted to legal remedies. The wife along with the minor child, has filed O.P.No.854 of 2020 before the Family Court, Chavara against the husband, sister-in-law and mother-in-law for return of gold ornaments and money. The wife has filed MC No.79 of 2020 before Judicial First Class Magistrate Court, Karunagappally against the husband and in-laws under Section 23(2) of the Protection of Women from Domestic Violence Act and has caused the registration of Crime No.830 of 2020 at the Palarivattom Police Station for offences under Sections 498A r/w 34 of IPC. On his part, the husband has filed OP No.1675 of** Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -5- **2020 for divorce and GOP No.1693 of 2020 for custody and guardianship of the minor child, before the Family Court, Ernakulam. At the instance of the husband's mother, Crime No.863 of 2020 has been registered against the wife at the Vanitha Police Station, Ernakulam for offences under Sections 323, 324, 354, 427 r/w 506 of IPC. 2. Tr.P.(C) No.110 of 2021 is filed by the husband, his mother and sister, seeking transfer of O.P.No.854 of 2020 filed by the wife from the Family Court, Chavara to the Family Court, Ernakulam. Tr.P.(Crl.) No.9 of 2021 is also filed by the same parties, seeking transfer of MC No.79 of 2020 filed by the wife before the JFCM Court, Karunagappally to the JFCM Court-IX, Ernakulam. Tr.P.(C) No.40 of 2021 is filed by the wife seeking transfer of O.P.Nos.1675 of 2020 and GOP No.1693 of 2020 from the Family Court,** -6- Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 **Ernakulam to the Family Court, Chavara.** **3. Heard Adv.Anitha Mathai Muthirenthy, learned Counsel appearing for the husband and M/s.S.Rajeev and P.Bijimon, learned Counsel appearing for the wife.** **4. Adv.Anitha Mathai submitted that in O.P.No.854 of 2020, the mother and sister of the husband are made parties unnecessarily, with the sole intention of vexing and harassing them. It is submitted that the mother, who is aged 68 years, is a cancer patient and the sister, a Doctor practicing at Ernakulam. Moreover, the wife having initiated criminal proceedings at Ernakulam by lodging complaint before the Police, will not be put to any further hardship by her original petition being transferred from Chavara to Ernakulam.** **5. Adv. S.Rajeev contended that the prayer** Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -7- **for transfer of MC No.79 of 2020 from the Magistrate Court at Karunagappally to a Magistrate Court at Ernakulam is misconceived and against the fundamentals of criminal law. It is submitted that the wife had chosen to file the complaint before the JFCM, Karunagappally since the bank locker and the immovable properties, regarding which reliefs are sought in the complaint, is within the jurisdiction of the court at Karunagappally. Further, most of the witnesses are also residing within the territorial jurisdiction of that court. Therefore, merely for the reason that some cases are pending before the Family Court at Ernakulam and crimes have been registered at the police stations in Ernakulam, the complaint under the Protection of Women from Domestic Violence Act cannot be transferred. According to the learned** Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -8- **Counsel, the request for transfer is made with the** _**mala fide**_ **intention of protracting the proceedings.** **6. Adv.Bijimon submitted that the children are residing within the jurisdiction of the Family Court at Chavara and hence, the original petition under the Guardian and Wards Act filed by the husband is liable to be transferred to Chavara, in view of Section 9 of the Guardian and Wards Act. Moreover, O.P.No.854 of 2020 filed by the wife is pending before the Family Court, Chavara and interest of justice requires that all cases be tried and decided by the same court. For the same reason, O.P.No.1675 of 2020 filed by the husband seeking divorce under Section 13(1) (ia) of the Hindu Marriage Act is also liable to be transferred to Chavara. Relying on the decisions of the Honourable Supreme Court, it is** Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -9- **contended that in transfer petitions arising out of matrimonial disputes, preference should be given to the convenience of the wife over that of the husband.** **7. Having heard the learned Counsel at** **length, I find substantial force in the contentions put forth on behalf of the wife. The pendency of original petitions for divorce and custody filed by the husband before the Family Court at Ernakulam and registration of two crimes, one at the instance of the wife and the other at the instance of the mother of the husband, in Police Stations at Ernakulam, are not valid reasons for exercising the power under Section 24 of the Code of Civil Procedure. So also, no sustainable legal reason is made out for transferring the complaint filed by the wife under the Protection of Women from Domestic** Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -10- **Violence Act. The ailment of the husband's mother and the professional commitment of his sister cannot be reasons for compelling the wife to travel all the way to Ernakulam for contesting the cases.** **8. On the contrary, as per Section 9 of the Guardian and Wards Act, the power to deal with cases pertaining to custody of minor children is vested with the Family Court within the jurisdiction of which the children are residing. Moreover, as held by the Honourable Supreme Court in** _**Sumita Singh v Kumar Sanjay and another [(2001) 10 SCC 41, Rajani Kishor Pardeshi v Kishor Babulal Pardeshi [ (2005) 12 SCC 237]**_ **and a plethora of other decisions, in transfer petitions arising from matrimonial cases, convenience of the wife should be preferred over that of the husband.** Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -11- **9. For the above reasons, I am inclined to allow the request for transfer made by the wife, while declining the husband's prayer for transfer. In the result, Tr.P.(Crl) No.9 of 2021 and Tr.P.(C) No.110 of 2021 are dismissed and Tr.P.(C) No.40 of 2021 is allowed. O.P. No.1675 of 2020 and GOP No.1693 of 2020 on the files of the Family Court, Ernakulam shall forth be transferred to the Family Court, Chavara.** **Considering the ailment of the husband's mother and the professional commitment of his sister, the Family Court, Chavara shall dispense with their personal appearance, unless absolutely essential.** Sd/- **V.G.ARUN JUDGE** Scl/21.10.2021 Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -12- ## **APPENDIX OF TR.P(C) 40/2021** |PETITIONER ANNEXURE|PETITIONER ANNEXURE| |---|---| |ANNEXURE A1|THE TRUE COPY OF OP 1675/2020 FILED BY| ||1ST RESPONDENT BEFORE THE FAMILY COURT| ||UNDER SECTION 13(1)(IA) OF HINDU| ||MARRIAGE ACT 1869 SEEKING DISSOLUTION| ||OF MARRIAGE BETWEEN HIMSELF AND THE| ||PETITIONER.| |ANNEXURE A2|THE TRUE COPY OF GOP 1693/2020 FILED| ||BY 1ST RESPONDENT BEFORE THE FAMILY| ||COURT ERNAKULAM UNDER SECTIONS, 7, 10| ||& 17 OF GUARDIAN AND WARDS ACT SEEKING| ||PERMANENT CUSTODY OF THE MINOR, VIHAAN| ||AGED ONE YEAR.| |ANNEXURE A3|THE TRUE COPY OF OP NO.854/2020 FILED| ||BY THE PETITIONER BEFORE THE FAMILY| ||COURT, CHAVARA FOR RECOVERY OF MONEY| ||AND GOLD ORNAMENTS AND CONSEQUENTIAL| ||RELIEFS.| Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -13- ## **APPENDIX OF TR.P(C) 110/2021** |PETITIONER ANNEXURE|PETITIONER ANNEXURE| |---|---| |ANNEXURE A1|A TRUE COPY OF THE FIR NO.78/2020 OF| ||THE VANITHA POLICE STATION, ERNAKULAM.| |ANNEXURE A1(A)|A TRUE COPY OF THE MEDICAL CERTIFICATE| ||DATED 08.01.2020.| |ANNEXURE A2|A TRUE COPY OF THE FIR NO.830/2020 OF| ||PALARIVATTAM POLICE STATION.| |ANNEXURE A3|A TRUE COPY OF THE M.C.NO.79/2020| ||BEFORE JFMC, KARUNAGAPALLY.| |ANNEXURE A4|A TRUE COPY OF OP.NO.1675/2020 BEFORE| ||THE FAMILY COURT, ERNAKULAM.| |ANNEXURE A5|A TRUE COPY OF GOP.NO.1693/2020 BEFORE| ||THE FAMILY COURT, ERNAKULAM.| |ANNEXURE A6|A TRUE COPY OF OP.NO.854/2020 FILED BY| ||THE RESPONDENT BEFORE THE FAMILY| ||COURT, CHAVARA.| |ANNEXURE A7|A TRUE COPY OF THE SCREENSHOT OF THE| ||FACEBOOK PAGE OF INKREDIBLE TATTOO AND| ||ART STUDIO.| Tr.P.(C) Nos.40 & 110/21 & Tr.P.(Crl.) No.9/21 -14- ## **APPENDIX OF TR.P(CRL.) 9/2021** PETITIONER ANNEXURE ANNEXURE A1 A TRUE COPY OF THE FIR NO.78/2020 OF THE VANITHA POLICE STATION, ERNAKULAM. ANNEXURE A1(A) A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 8.1.2020. ANNEXURE A2 A TRUE COPY OF THE FIR NO.830/2020 OF PALARIVATTOM POLICE STATION. ANNEXURE A3 A TRUE COPY OF THE M.C.NO.79/2020 BEFORE JFMC, KARUNAGAPALLY. ANNEXURE A4 A TRUE COPY OF THE SCREENSHOT OF THE FACEBOOK PAGE OF INKREDIBLE TATTOO AND ART STUDIO.