Tr.P(C) Nos.452 and 511 of 2020

1 Tr.P (C)Nos.452 and 511 of 2020 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944 ``` ``` TR.P(C) NO. 452 OF 2020 ``` ## **`TO TRANSFER OP 298/2020 OF FAMILY COURT, THODUPUZHA`** ## **`PETITIONER/S:`** ``` 1MOLYKUTTY T.JOSE AGED 52 YEARS W/O. K.K.VARGHESE, THEKKEL HOUSE, PALA P.O,MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT-686 575 2ELIKUTTY JOSEPH, AGED 82 YEARS W/O.JOSEPH, THEKKEL HOUSE, PALA P.O., MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT-686 575 BY ADVS. JUSTINE JACOB SRI.K.S.ARUN KUMAR SMT.BINDU MOHAN SMT.AMRUTHA P S SMT.AMRUTHA K P SHRI.VIJAY SANKAR V.H. RAJEE P MATHEWS SRI.C.N.MOHANAN (CHAPPURAIL) ``` ## **`RESPONDENT/S:`** ``` 1K.K.VARGHESE AGED 58 YEARS S/O. KURIAKOSE,KALAPURAKKAL HOUSE, KUDAYATHOOR P.O., KUDAYATHOOR VILLAGE, THODUPUZHA THALUK, IDUKKI DISTRICT- 685 590 2THE KUDAYATHOOR SERVICE CO-OPERATIVE BANK LITD NO.3316,KUDAYATHOOR P.O., THODUPUZHA, PIN-685 590, REPRESENTED BY ITS SECRETARY 3THE FARMERS SERVICE CO-OPERATIVE BANK LTD NO.1299, ARAKKALAM P.O., THODUPUZHA ,PIN-685 591, REPRESENTED BY ITS SECRETARY BY ADV SRI.DOMSON J.VATTAKUZHY ``` ## **`THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON`** ## **`15.12.2022 ALONG WITH TRPC 511/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** 2 Tr.P (C)Nos.452 and 511 of 2020 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, ``` ## **`1944`** ## **`TR.P(C) NO. 511 OF 2020`** ## **`TO TRANSFER OPDIV 758/2019 OF FAMILY COURT, PALA`** ## **`PETITIONER/S:`** ``` K.K.VARGHESE AGED 58 YEARS S/O.KURIAKOSE, KALAPPURAKKAL HOUSE, KUDAYATHOOR P.O., KUDAYATHOOR VILLAGE, THODUPUZHA TALUK, IDUKKI - 685 590. ``` ``` BY ADV DOMSON J.VATTAKUZHY ``` ## **`RESPONDENT/S:`** ``` MOLYKUTTY T.JOSE AGED 52 YEARS, W/O.K.K.VARGHESE, THEKKEL HOUSE, PALA P.O., MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM - 686 575. BY ADVS. SRI.K.S.ARUNDAS SMT.BINDU MOHAN SHRI.ARJUN KUMAR K.S. SHRI.VIJAY SANKAR V.H. SRI.JUSTINE JACOB ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2022 ALONG WITH TRPC 452/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Tr.P (C)Nos.452 and 511 of 2020 ## **C.S DIAS,J.** **--------------------------Tr.P (C)Nos.452 and 511 of 2020 ----------------------------Dated this the 15[th] day of December, 2022.** ## **COMMON ORDER** As the parties in two transfer petitions are almost same and the disputes arise out of the marriage between Molykutty T Jose (wife) and K.K Varghese (husband), they are being disposed of by the common order. 2. TrP(C)No.452/2020 is filed by the wife and her mother to transfer OP (Div)No.298/2020 filed by the husband from the Family Court, Thodupuzha to the Family Court, Pala. Tr.P(C)No.511/2020 is filed by the husband to transfer OP (Div) 758/2019 filed by the wife from the Family Court, Pala, to the Family Court, Thodupuzha. The pleadings and status of the parties are referred to, as per their litigate status in Tr.P(C)No.452/2020, which is treated as leading case. 3. The common case of the petitioners in Tr.P(C) 452/2020 is that, the first petitioner is the wife of the 4 Tr.P (C)Nos.452 and 511 of 2020 first respondent. The second petitioner is the mother of the first petitioner. The first petitioner and the first respondent got married on 19.5.1996. They have a son born in the wedlock. The marital relationship is strained. The first petitioner has filed OP(Div) 758/2019 (Annexure A), against the first respondent before the Family Court, Pala, seeking a decree of divorce. The first respondent has filed OP No.298/2020 (Annexure B) against the petitioners and the respondents 2 and 3, to declare that he is entitled to the chitty amount and for other consequential reliefs. The petitioners are residing in Pala within the jurisdiction of the Family Court, Pala. The second petitioner is 82 years old. It is difficult for the petitioners to travel all the way from Pala to Thodupuzha to contest Annexure B. Hence, the transfer petition. 4. The first respondent has filed Tr.P(C)No.511/2020, inter alia, contending that his right leg below the knee has been amputed and he has permanent disability of 45%. It would be difficult for 5 Tr.P (C)Nos.452 and 511 of 2020 him to travel from Kudayathoor to Pala, to contest Annexure A. Hence, Annexure A may be transferred. 5. Heard; Sri.Justin Jacob, the learned counsel appearing for the petitioners and Sri.Domson J.Vattakuzhy, the learned counsel appearing for the first respondent. 6. The question is which of the transfer petitions is to be allowed? 7. On a consideration of the pleadings and materials on record in the transfer petitions, it is evident that both the husband and wife have filed litigations against each other, on account of the disputes that have arisen out of their marriage. 8. The first petitioner/wife has sought for divorce and first respondent/husband has sought for a decree for declaration and other ancillary reliefs. Both of them seek for transfer on the ground of inconvenience and hardship to contest the proceedings in two Courts. 9. The law with respect to transfer of no proceedings, particularly matrimonial disputes, is 6 Tr.P (C)Nos.452 and 511 of 2020 longer res-integra, 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 182]. 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. 10. In the light of the law laid down in the aforecited decisions, the pleadings and materials on record, the totality of the facts and circumstances of the case, particularly the fact that Annexure A is already pending before the Family Court, Pala from the year 2019 and the first respondent is contesting the proceeding before the said Court, I am inclined to exercise the discretionary powers of this Court under Sec.24 of the 7 Tr.P (C)Nos.452 and 511 of 2020 Code of Civil Procedure and order the transfer of Annexure B, so that the cases can be consolidated and jointly tried, which would avoid multiplicity of proceedings, conflict of decisions and save precious judicial time. In the result, I dispose of the transfer petitions in the following manner: (i) Tr.P(C)No.452/2020 is allowed by ordering the transfer of OP No.298/2020 from the Family Court, Thodupuzha, to the Family Court, Pala. (ii) Tr.P(C)No.511/2020 is dismissed. (iii) The Registry shall forward a copy of this common order to the Family Court, Thodupuzha with instructions to forthwith transmit the records in Annexure B to the Family Court, Pala. (iii) The parties would be at liberty to move the Family Court, Pala and seek for consolidation and joint trial of all the cases between them. 8 Tr.P (C)Nos.452 and 511 of 2020 (iv) The Family Court, Pala, shall, immediately on receipt of the records in Annexure B post the case along with Annexure A. SD/- sks/15.12.2022 **C.S.DIAS, JUDGE** 9 Tr.P (C)Nos.452 and 511 of 2020 ## **`APPENDIX OF TR.P(C) 452/2020`** ``` PETITIONER ANNEXURES ANNEXURE-ATRUE COPY OF THE OP NO.758/2020 PENDING BEFORE THE FAMILY COURT, PALA ANNEXURE-BTRUE COPY OF THE OP NO.298/2020 OF FAMILY COURT, THODUPUZHA ``` 10 Tr.P (C)Nos.452 and 511 of 2020 ## **`APPENDIX OF TR.P(C) 511/2020`** ``` PETITIONER ANNEXURES ANNEXURE ATRUE COPY OF THE O.P.NO.298/2020 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THODUPUZHA. ANNEXURE BTRUE COPY OF THE O.P.(DIVORCE) NO.758 OF 2019 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, PALA. ANNEXURE CTRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD ATTACHED TO THE TALUK HEADQUARTERS HOSPITAL THODUPUZHA. ```