Tr.P(C).No.678 of 2015 & Tr.P.(Civil) No.11 of 2016 (Transfer Petitions)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938** ## **Tr.P(C).No. 678 of 2015 ()** ## **---------------------------** ## **OP 1639/2015 of FAMILY COURT,THRISSUR** ## **PETITIONER(S):** **--------------------** ## **1. PRINUJITH K.J.** **S/O. KARUNAKARAN ACHARI, R/AT 215 J, D.D.MISTY HILLS, NAVODAYA, MILLUMPADY, KAKKANADU P.O., KOCHI - 682 030.** ## **2. KARUNAKRAN ACHARI** **F/O PRINUJITH, R/AT 215 J D.D MISTY HILLS, NAVODAYA, MILLUMPADY, KAKKANADU P.O., KOCHI - 682 030.** ## **3. JASSY LEON** **W/O. KARUNAKARAN ACHARI, R/AT 215 J D.D. MISTY HILLS, NAVODAYA, MILLUMPADY, KAKKANADU P.O., KOCHI - 682 030.** **BY ADVS.SMT.T.S.MAYA (THIYADIL) SMT.K.A.SUNITHA** ## **RESPONDENT(S):** **-----------------------** **VYSHAKHY D/O. VIJAYAN T.R., R/AT THAZHATHU PARAMBIL HOUSE, OORAKAM DESAM, OORAKAM P.O., THRISSUR TALUK, THRISSUR DISTRICT - 680 562.** ## **R BY ADV. SMT.M.A.ZOHRA** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-09-2016, ALONG WITH TPC. 11/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Tr.P(C).No. 678 of 2015** ## **---------------------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** ## **ANNEXURE A - THE TREATMENT DETAILS OF THE 3RD PETITIONER** **ANNEXURE B - THE COPY OF THE PETITION OP NO.1639/2015 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR.** **ANNEXURE C - THE COPY OF THE DIVORCE PETITION OP NO.2210/2015 FILED BY THE 1ST PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM. ANNEXURE D - THE COPY OF THE QUERY AND REPLY.** **ANNEXURE E - PHOTOGRAPHS.** ## **RESPONDENT'S ANNEXURES NIL** **// True Copy // P.A. to Judge** ## **rmm** ## **K.RAMAKRISHNAN, J.** **------------------------------------------------Tr. P. (Civil) Nos. 678 of 2015 & 11 of 2016 ------------------------------------------------Dated this the 29[th] day of September, 2016** ## **O R D E R** Tr.P.C.No.678/2015 was filed by the petitioners who are the respondents in O.P.No.1639/2015 of the Family Court, Thrissur to the Family Court, Ernakulam to be tried along with O.P.No.2210/2015 while Tr.P.C.No.11/2016 was filed by the petitioner for transfer of O.P.No.2210/2015 pending before the Family Court, Ernakulam to Family Court, Thrissur to be tried along with O.P.No.1639/2015 and M.C. No.485/2015 both pending before the Family Court, Thrissur both under Section 24 of the Code of Civil Procedure. 2. The common case of both the parties in this petition was that the marriage between the petitioner in Tr.P.C.No.11/2016 and respondent in that case was solemnized on 14.12.2013. Thereafter, they were residing together for sometime and due to some difference of opinion, they are now residing separately. Tr. P. (Civil) Nos. 678/2015 & 11/2016 2 3. The petitioner in Tr.P.C.No.11/2016 filed O.P.No.1639/2015 before the Family Court, Thrissur against the petitioners in Tr.P.C. No.678/2015 who are the husband and in-laws of the wife, for return of gold ornaments and other monetary reliefs. It is also alleged that the wife namely, the petitioner in Tr.P.C.No.11/2016 and respondent in Tr.P.C.No.678/2015 had made a complaint in the Cherpu Police Station, on the basis of which, a crime was registered as Crime No.1519/2015 of Cherpu Police Station against the husband alleging offences under Section 498(A) of Indian Penal Code. She had also filed M.C. No.485/2015 before the Family Court, Thrissur for maintenance against her husband under Section 125 (1) of the Code of Criminal Procedure. The husband filed O.P.No.2210/2015 before the Family Court, Ernakulam for divorce. According to the petitioner, in Tr.P.C. No.11/2016, she was without employment and she is residing with her aged parents at Cherpu in Thrissur District and it is difficult for her to go to Ernakulam to conduct the case. The respondent had Tr. P. (Civil) Nos. 678/2015 & 11/2016 3 already entered appearance, in the case, filed by her and even the other case is also transferred no hardship caused to them. 4. On the other hand, the petitioners in Tr.P.C.No.678/2015 had stated that, the petitioners two and three are aged persons and third petitioner is suffering from Cancer and the first petitioner had resigned his job in order to look after his mother and he is now doing software developing work getting a meager income and it is difficult for the petitioners to go to Thrissur to conduct the case. So, the respective petitioners have sought for transfer of the respective cases pending before the Family Court, Thrissur and Family Court, Ernakulam to Family Court, Ernakulam and Family Court, Thrissur respectively. 5. In Tr.P.C.No.678/2015 respondent entered appearance and filed counter denying all the allegations and also reiterating her difficulty to come to Ernakulam to conduct the case. She had also stated that, she is only temporarily employed and her parents have three Tr. P. (Civil) Nos. 678/2015 & 11/2016 4 daughters including herself. In other two cases, the petitioners have entered appearance and the presence of petitioners two and three are not required, they can appear through the counsel, the case can be conducted by the first petitioner. According to her, there is no necessity to transfer the cases. Petitioners in that cases also produced Annexure D to prove that, the respondent in their case was employed as Asst. Spa Manager in a concern by name Raddison Blu, Goa who are conducting resorts there. They also produced certain documents to show the ill health of the third petitioner. 6. Heard Smt.T.S.Maya Thiyadil, the counsel appearing for the petitioners in Tr.P.C. No.678/2015 and respondent in Tr.P.C.No.11/2016 and Smt.M.A.Zohara, the counsel for the petitioner in Tr. P.C. No.11/2016 and respondent in Tr.P.C. No.678/2015. For convenience sake, I am referring to the status of the parties instead of their rank in the respective cases in this order. Both the counsel vehemently argued in support of the case in their respective petitions. Tr. P. (Civil) Nos. 678/2015 & 11/2016 5 7. It is an admitted fact that, the petitioner in Tr.P.C No.11/2016 and respondent in the same case are the wife and husband and petitioners two and three in the Tr.P.C. No.678/2015 are the parents of the husband who is the respondent in Tr.P.C.No.11/2016. They lived together as husband and wife for some time after marriage. Thereafter, the love lost between them and they are residing separately now. Wife filed O.P.No.1639/2015 before the Family Court, Thrissur for recovery of gold ornaments and other monetary reliefs against the husband and in-laws. It is also seen that she filed M.C. No.485/2015 before the Family Court, Thrissur for maintenance from her husband under Section 125(1) Code of Criminal Procedure. It is seen from the endorsement from the office that M.C. No.485/2015 of the Family Court, Thrissur has been dismissed for default. At the time of hearing, the counsel for the wife submitted that the same has been restored and posted to 02.11.2016 for evidence. In the meantime, the husband filed O.P.No.2210/2015 before the Family Court, Tr. P. (Civil) Nos. 678/2015 & 11/2016 6 Ernakulam for divorce. It is true that the documents produced by the husband show that the third petitioner in Tr.P.C.No.678/2015 is suffering from Cancer and she is undergoing treatment for the same. Some of the documents namely, the e-mail correspondence produced by the husband also show that the wife is employed as Asst. Spa Manager in a resort belonging to the Raddison Groups at Goa. It is conceded by the counsel for the wife that, at the time when the application was filed she was not employed and now she went to go Goa only on a temporary arrangement for six months and the employment is not permanent. However, there is no evidence before this Court that she is permanently employed and getting any permanent income as such. As regards the in-laws are concerned, their personal presence is not required for the conduct of the case and the husband can conduct the case on their behalf, in the case pending before the Family Court, Thrissur i.e. O.P. No.1639/2015 filed by the wife. Being a lady, if she has to come, she has to be accompanied by somebody to Tr. P. (Civil) Nos. 678/2015 & 11/2016 7 conduct the case at Ernakulam. She will have to depend on somebody for that purpose and that may cause unnecessary hardship to her. It is true that in the decision reported in _**Raichal John v. Francis Ninan**_ **1995 KHC 123** it has been held that when cases are filed before the Family Court within the jurisdiction where the cause of action arises, it should not be mechanically transferred. The same view has been reiterated by the Supreme Court also in the decision reported in _**Anindita Das v. Srijit Das**_ **2006 KHC 1887.** But facts of these cases are different in all these cases. But it is also mentioned in these two cases that there is a tendency to misuse the provision of transfer and court will have to consider the merits of each case before considering the question of transfer of these cases from one court to another. It is a case where wife will have to depend on somebody else for coming to Ernakulam to conduct the case. Further, two cases are pending before the Family Court, Thrissur against the husband, one of each being sought to be transferred by filing Tr.P.C.No.678/2015 Tr. P. (Civil) Nos. 678/2015 & 11/2016 8 where apart from the husband and his parents are also parties. He had to conduct the case filed by the wife for maintenance as M.C.No.485/2015 before the Family Court, Thrissur, which according to counsel for the wife has already been restored the file. So, considering the circumstances, the hardship mentioned by the husband and parents can be removed by permitting the in-laws to appear in court through their counsel as their appearance is not required for the conduct of the case except for giving evidence, if any required, on their side and on all other occasions they can be represented by their counsel and the first petitioner in the Tr.P.C.No.678/2015 can conduct the case on their behalf as well. So considering the over all circumstances, this Court feels that it is necessary in the interest of justice to transfer O.P.No.2210/2015 filed by the husband against the wife for divorce, especially, when two cases filed by the wife are pending before the Family Court, Thrissur one of each being sought to be transferred by filing Tr.P.C. No.678/2015 by the respondent in that case. So Tr. P. (Civil) Nos. 678/2015 & 11/2016 9 considering the above aspects, this Court feels that there is no merit in the Tr.P.C.678/2015 and that is liable to be dismissed and Tr.P.C. No.11/2016 is to be allowed. 8. So, Tr.P.C.No.678/2015 is dismissed and Tr.P.C. No.11/2016 is allowed and O.P.No.2210/2015 pending before the Family Court, Ernakulam is withdrawn and transferred to Family Court, Thrissur to be tried along with O.P.No.1639/2015 and M.C.No.485/2015 pending before that court. Considering the fact that, the cases of the year is 2015, the Family Court, Thrissur is directed to expedite and dispose of those cases as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this order. Attempt for mediation and counseling also can be attempted by the Family Court, to explore the possibility of settlement before conducting the trial of the case. The parties in O.P.No.2210/2015 are directed to appear before the Family Court, Thrissur on 08.11.2016 either in person or through their counsel. Unnecessary adjournment or transfer on the inconveniences of the wife should not be Tr. P. (Civil) Nos. 678/2015 & 11/2016 10 entertained by the Family Court. The Family Court, Ernakulam is directed to transmit the records of O.P.No.2210/2015 of that court to Family Court,Thrissur immediately at any rate before the date fixed for appearance of parties. Registry is directed to communicate this order to the concerned courts immediately. Sd/- **K.RAMAKRISHNAN JUDGE** // True copy // P.A. To Copy rmm/01.10.2016