Tr.P(C).No.286 OF 2020 & Tr.P(Crl.).No.42 OF 2020

**Tr.P(C).No.286 OF 2020 & Tr.P(Crl.).No.42 OF 2020** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942** **Tr.P(C).No.286 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OP 113/2020 OF FAMILY COURT, KOTTAYAM** ## **PETITIONER/S:** **GAYATHRY CHANDRAN AGED 28 YEARS D/O. CHANDRASHEKHARAN NAIR, VAIKONATHU PUTHENVEETTIL, THIRUMALA VILLAGE, THIRUVANANTHAPURAM** **BY ADVS. SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SRI.R.RAJESH (VARKALA) SHRI.SAMEER M NAIR** ## **RESPONDENT/S:** **VINU.M, AGED 34 YEARS S/O. K.MADHAVAN, PUTHVEETTIL PULARICKAL , MUTTAMBALAM P.O., KANJIKUZHI , NOW RESIDING AT ANANDALAKSHMI BHAVAN, AIMANAM VILLAGE, KOTTAYAM TALUK, AIMANAM P.O., KOTTAYAM-686 015** **R1 BY ADV. SRI.ALEX.M.SCARIA R1 BY ADV. SMT.SARITHA THOMAS R1 BY ADV. SHRI.VISHNU MOHAN R1 BY ADV. KUM.MINU THANKAPPAN** **THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2020, ALONG WITH Tr.P(Crl.).42/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Tr.P(C).No.286 OF 2020 &** **2** **Tr.P(Crl.).No.42 OF 2020** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942** **Tr.P(Crl.).No.42 OF 2020** **AGAINST THE ORDER/JUDGMENT IN MC 120/2020 OF FAMILY COURT,TRIVANDRUM** ## **PETITIONER/S:** **VINU M., AGED 34 YEARS S/O.K. MADHAVAN, ANANDHALAKSHMI BHAVAN, AYMANAM VILLAGE, KOTTAYAM TALUK, AYMANAM P.O. KOTTAYAM DISTRICT 686 015.** **BY ADVS. SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS** ## **RESPONDENT/S:** **GAYATHRI CHANDRAN D/O. CHANDRASEKHARAN NAIR, VAIKONATHU PUTHENVEETTIL, THIRUMA VILLAGE, THIRUVANANTHAPURAM 695 006.** **THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.11.2020, ALONG WITH Tr.P(C).286/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **3** ## **COMMON ORDER** Both the husband and wife seek transfer of proceedings, filed against each other, from one court to another. The wife has filed Tr.P (C) No.286/2020 seeking to transfer O.P. 113/2020 (Annexure A1),O.P. No.210/2020 (Annexure-A2) and O.P. No.341/2020 (Annexure-A3) pending before the Family Court, Ettumannur to the Family Court, Thiruvananthapuram, where she has filed M.C No.31/2020 before the Court of the Additional Chief Judicial Magistrate, Thiruvananthapuram and MC 120/2020 before the Family Court, Thiruvananthapuram. The husband on the other hand has filed Transfer Petitions (Crl) 42/2020 seeking transfer of M.C 120/2020 from the Family Court, Thiruvananthapuram to the Family Court, Ettumannur at Kottayam. As the parties are the **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **4** same and the transfer petitions are filed seeking transfer of proceedings filed as against each other, I dispose of the transfer petitions by this common order. The parties are for the sake of convenience, referred to as per their status in Tr.P. © No. 286/2020, which is treated as the leading case, unless otherwise specifically mentioned. 2. The learned counsel appearing for the wife had contended that the petitioner has not received notice in Tr.P (Crl)/2020. Accordingly, the learned counsel for the respondent was directed to serve a copy of the memorandum of transfer petition. Hence, I dispense with further ordering of notice to the petitioner. 3. The case of the petitioner in Tr.P© No.286/2020, in brief, is that, the respondent has filed Annexures A1, A2 and A3 against the petitioner before the Family Court, Ettumannur, **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **5** seeking a declaratory decree, a decree of injunction and decree of divorce, respectively. The petitioner has instituted M.C 31/2020 under the provisions of the Protection of Woman from Domestic Violence Act and MC 120/2020 seeking an order of maintenance under Section 125 of Cr.P.C. The Family Court, Ettumannur is nearly 120 kms on one side from Thiruvananthapuram. It would cause severe inconvenience to the petitioner to travel all the way from Thruvananthapuram to Ettumannur, to contest the proceedings before the Family Court, Ettumannur. In view of the settled law, it is only just and proper that the convenience of the petitioner be looked into and Annexures A1 to A3 be transferred from the Family Court, Ettumannur to the Family Court, Thiruvananthapuram. 4. The respondent, on the other hand, has **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **6** contended in Tr.P (Crl) 42/2020 that, the petitioner has abandoned him and the children and eloped with a stranger after misappropriating money and gold ornaments. The respondent has lodged a complaint before the police. It would be difficult for the respondent to contest the proceedings before the Family Court, Thirvananthapuram. The respondent is taking care of his old and infirm parents, who are suffering from various ailments. The respondent is the sole earning member of the family. Moreover, it is the respondent who is taking care of the minor children. Now due to the online classes, it would be difficult for him to leave the children at home an go over to Thiruvananthapuram to contest the proceedings before the Family Court, Thiruvananthapuram. Therefore, M.C 120/2020 may be transferred from the Family Court, Thiruvananthapuram to the ## **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **7** Family Court, Ettumannur, so that the proceedings can be consolidated and jointly tried with Annexure-A1 to A3 proceedings. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6. The learned counsel appearing for the petitioner argued that in view of the settled proposition of law in a plethora of decision of the Hon'ble Supreme Court, it is only the convenience of the petitioner has to be looked into while ordering the transfer of the cases. The petitioner is living with her aged parents and there is no person to chaperon her from Thiruvananthapuram to Ettumannur, to contest the proceedings. Hence, the transfer petition may be allowed. 7. Per contra, the learned counsel appearing for the respondent contended that Tr.P (C) **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **8** 286/2020 is not maintainable in law because the petitioner has sought for transfer of three cases in a single transfer petition. No equity should be exercised in favour of the petitioner as she has eloped with a stranger leaving the children in perilous circumstances. It is with severe difficulty that the respondent is taking care of the children. Moreover, as the property involved in Annexure-A1 proceedings is situated in Ettumannur, the Family Court, Thiruvananthapuram does not have the territorial jurisdiction to entertain Annexure-A1 proceedings. She relied on the decision of the Hon'ble Supreme Court in **Anindita Das v. Srijit Das** [2006(9) SCC 197] and contended that the convenience of the wife is not the sole criteria for ordering transfer of cases. 8. Adverting to the first contention of the learned counsel for the respondent that three cases **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **9** cannot be transferred in a single transfer petition, I am afraid that the contention does not hold water, in light of the well settled law in **Dhanu Joby @ Dhanu Shaji v. Joby Cherian** [2016 (1) KHC 678], wherein a Division Bench of this Court has categorically held that more than one case can be transferred in a consolidated transfer petition, provided separate applications are filed by the party. The petitioner has filed I.A Nos.1,2 and 3 in Tr.P(C) No.286/2020, with independent prayers, seeking transfer of Annexures A1 to A3, in line with the law declared in **Dhanu Joby @ Dhanu Shaji (supra). T** herefore, the said contention has to necessarily fail. 9. Coming to the second contention of the learned counsel for the respondent that as the property involved in Annexure-A1 is situated within the jurisdiction of the Family Court, **Tr.P(C).No.286 OF 2020 & Tr.P(Crl.).No.42 OF 2020** **10** Ettumannur, the proceedings cannot be transferred by this Court to the Family Court, Thiruvananthapuram is totally untenable, because there is no fetter on the discretionary power of transfer of this Court under Section 24 of the Code of Civil Procedure, and we are not guided by Sections 16 to 20 of the Code of Civil Procedure. All that this Court is expected to consider is the convenience of the parties, avoid multiplicity of proceedings, avoid conflicting decisions which all would save judicial time, de hors the territorial jurisdiction of a particular court. 10. The law in respect of transfer of proceedings, particularly in matrimonial disputes, is no 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** [(2001)10 SCC 41)], **Mona Aresh Goel V. Aresh** **Tr.P(C).No.286 OF 2020 & Tr.P(Crl.).No.42 OF 2020** **11** **Satya Goel** [(2000) 9 SCC 255], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [AIR 2016 SC 3584] and **Santhini V. Vijaya Venkatesh** [2017 (4) KLT 415 (SC)]. The Hon'ble Supreme Court has held that it is the convenience of the woman and children that has to be given preference, while ordering the transfer of a case from one Court to another. 11. It is an undisputed fact that the petitioner has already instituted M.C No.31/2020 before the jurisdictional Magistrate at Thiruvananthapuram and MC No.120/2020 before the Family Court, Thiruvananthapuram. The respondent has not sought for transfer of M.C 31/2020, but only for the transfer of M.C 120/2020. Therefore, necessarily the respondent will have to appear and contest M.C 31/2020 before the jurisdictional Magistrate at Thiruvananthapuram. It is also an ## **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **12** admitted fact that the petitioner is residing with her parents at Thiruvananthapuram and the distance between Thiruvananthapuram and Ettumannur is more than 120 kms on one side. It would take a whole day for the petitioner to travel all the way from Thiruvananthapuram to Ettumannur and back in order to defend Annexure A-1 to A3 proceedings. It is trite law that the comparative hardship of the woman has to be given due weightage, when compared to the relative hardship of the husband. Therefore, I am of the opinion that the discretionary power of this Court under Section 24 of the Code of Civil Procedure has to be exercised in favour of the petitioner. If such a course is adopted, all the proceedings between the parties can be considered and jointly tried, which would avoid conflict of decisions and save judicial time. ## **Tr.P(C).No.286 OF 2020 &** **Tr.P(Crl.).No.42 OF 2020** **13** In the totality of the facts and circumstances of the case, the law laid down by the Hon'ble Supreme Court in the afore-cited decisions and in exercise of the discretionary powers of this Court under Section 24 of the Code of Civil Procedure, I allow the Tr.P (C) 286/2020 by ordering the transfer of O.P. Nos.113/2020, 210/2020 and 341/2020 from the Family Court, Ettumannur to the Family Court, Thiruvananthapuram. It would be up to the parties to move the Family Court, Thiruvananthapuram and seek for consolidation and joint trial of the above cases along with M.C 120/2020. In view of the order in Tr.P(C) No.286/2020, I dismiss Tr.P (Crl) No.42/2020 The Registry shall forward a copy of this judgment to the Family Court, Ettumannur with instructions to forthwith transmit the records in O.P **Tr.P(C).No.286 OF 2020 & Tr.P(Crl.).No.42 OF 2020** **14** Nos.113/2020, 210/2020 and 341/2020 to the Family Court, Thiruvananthapuram. The parties are directed to appear before the Family Court, Thiruvananthapuram, either in person or through counsel, on 14.1.2021. ma/18.11.2020 **Sd/- C.S.DIAS, JUDGE** /True copy/ **Tr.P(C).No.286 OF 2020 & Tr.P(Crl.).No.42 OF 2020** **15** ## **APPENDIX OF Tr.P(C) 286/2020** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE-A1**|**THE TRUE COPY OF THE PETITION IN OP**| |---|---| ||**113/2020 FILED BY THE RESPONDENT**| ||**BEFORE THE FAMILY COURT, ETTUMANUR**| |**ANNEXURE-A2**|**THE TRUE COPY OF THE PETITION IN OP**| ||**210/2020 FILED BY THE RESPONDENT**| ||**BEFORE THE FAMILY COURT, ETTUMANUR**| |**ANNEXURE-A3**|**THE TRUE COPY OF THE PETITION IN OP**| ||**341/2020 FILED BY THE RESPONDENT**| ||**BEFORE THE FAMILY COURT, ETTUMANUR**| **Tr.P(C).No.286 OF 2020 &** **16** **Tr.P(Crl.).No.42 OF 2020** ## **APPENDIX OF Tr.P(Crl.) 42/2020** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE**|**1**|**TRUE COPY OF THE MC 120/2020 ON THE**| |---|---|---| |||**FILES OF THE FAMILY COURT,**| |||**THIRUVANANTHAPURAM.**| |**ANNEXURE**|**2**|**TRUE COPY OF O.P.113/2020 ON THE**| |||**FILES OF THE FAMILY COURT, KOTTAYAM**| |||**AT ETTUMANOOR.**| |**ANNEXURE**|**3**|**TRUE COPY OF THE O.P.341/2020 ON THE**| |||**FILES OF THE FAMILY COURT, KOTTAYAM**| |||**AT ETTUMANOOR.**| |**ANNEXURE**|**4**|**TRUE COPY OF THE O.P.210/2020 ON THE**| |||**FILES OF THE FAMILY COURT, KOTTAYAM**| |||**AT ETTUMANOOR.**|