Varsha Vijayakumar vs. Arun Sajeev

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939** **Tr.P(C).No. 824 of 2017** **----------------------OPHMA 752/2017 of FAMILY COURT, PATHANAMTHITTA ---------** **PETITIONER/RESPONDENT :** **---------------------** **VARSHA VIJAYAKUMAR, DAUGHTER OF VIJAYAKUMAR, AGED YEARS, RESIDING AT VASANTHA VILASOM, ANAYADI P.O., SOORANADU NORTH VILLAGE, KUNNATHOOR TALUK, THAMARAKULAM PANCHAYAT, KOLLAM-690 561.** **BY ADV.SRI.HARISH GOPINATH** **RESPONDENT/PETITIONER: ---------------------** **ARUN SAJEEV, AGED 33 YEARS, SON OF M SAJEEV, RESIDING AT OMANALAYAM, KARITHOTTA P.O., ULLANNOOR MURI, KULANAD VILLAGE, KOZHENCHERRY TALUK, PAHANAMTHITTA-689 514.** **BY ADV. SRI.V.SETHUNATH** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 05-02-2018 ALONG WITH TR.P(C) 824/2017 & TR.PCR 01/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** **Tr.P(C).No. 824 of 2017** ## **-----------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **----------------------** **ANNEXURE A1: COPY OF THE PETITION IN O P(HMA)NO. 752 OF 2017 ON THE FILE OF FAMILY COURT, PATHANAMTHITTA** ## **RESPONDENT'S ANNEXURES :** **----------------------** **ANNEXURE R1(a): COPY OF THE COMPLAINT PREFERRED BY THE RESPONDENT BEFORE THE CHAVARA POLICE STATION.** **ANNEXURE R1(b): COPY OF THE RECEIPT ISSUED BY THE CHAVARA POLICE STATION.** **ANNEXURE R1(c): COPY OF THE COMPLAINT PREFERRED BEFORE THE DISTRICT POLICE CHIEF, PATHANAMTHITTA.** **ANNEXURE R1(d): COPY OF THE ACKNOWLEDGEMENT CARDS SIGNED BY VARIOUS POLICE OFFICERS.** **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **ALEXANDER THOMAS, J.** ## **-------------------------------Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018** **-----------------------------------------------------------Dated this the 05[th] day of February 2018** ## **ORDER** The prayers in Tr.P.(C) No.824/2017 are as follows: - _a) To pass an order transferring O.P(HMA) No.752 of 2017 on the file of Family Court, Pathanamthitta to Family Court, Chavara._ - _b) Issue such other order or direction as are necessary in the nature of the case and in the interest of justice._ ## 2. The prayer in Tr.P (C).No.10/2018 is as follows: _For these and other grounds that may be urged at the time of hearing this Honourable court may be pleased to withdraw the O.P.No.709/2017 on the file of the Family Court, Chavara may be withdrawn and made over to the Family Court, Pathanamthitta to be tried along with O.P. (HMA)No.752/2017 on the file of the same court._ ## 3. The prayer in Tr.P (Criminal) No.1/2018 is as follows: _For these and other grounds that may be urged at the time of hearing this Honourable court may be pleased to withdraw the M.C. No.171/2017 on the file of the Family Court, Chavara may be withdrawn and made over to the Family Court, Pathanamthitta to be tried along with O.P(HMA)_ 2 Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 _No.752/2017 on the file of the same court._ 4. Heard Sri.Harish Gopinath learned counsel appearing for the wife and Sri.V.Sethunath learned counsel for the husband. 5. The petitioner in Tr.P.(C) No.824/2017 is the wife of the respondent herein. The husband has filed Tr.P.(C) No.10/2018 and Tr.P(Criminal) No.01/2018. Differences of opinion between the parties have led to matrimonial disputes between them and now there are three litigating proceedings between the parties, which are pending before the Family Courts. The husband has filed O.P. (HMA)No.752/2017 before the Family Court, Pathanamthitta (seeking divorce). The wife has filed O.PNo.709/2017 before the Family Court, Chavara (seeking return of gold ornaments and money). The wife has ALSO filed M.C No.171/2017 before the Family Court, Chavara (seeking maintenance under Section 125 Cr.P.C). The wife would contend that she is residing at Anayadi, Sooranad in Kollam and that she expressed her extreme difficulties to travel all the way from her residential locality to Pathanamthitta to attend the divorce proceedings, pending before the Family Court, Pathanamthitta, instituted by her husband. The wife submits that she is now residing along with her parents and there is nobody to accompany her to travel all the way for attending the Family Court ## 3 Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 proceedings at Pathanamthitta. However, she has already instituted other two petitions before the Family Court, Chavara and that in the interest of justice, this Court may issue necessary directions for transferring the divorce O.P.(HMA) No.752/2017 filed by the husband from the Family Court, Pathanamthitta to the Family Court, Chavara. 6. The main contention raised by the husband is that the wife and her family members have threatened him and will cause harm to him, and is constrained to attend the proceedings before the Family Court, Chavara and it is on the basis that he seeks transfer of the petition from Family Court, Chavara to Family Court, Pathanamthitta. The husband has also stated some serious incident, that had occurred on 25.11.2017, when he was returning to Pathanamthitta after the proceedings before the Family Court, Chavara. This Court had passed an interim order dated 05.01.2018, in which the competent Police Authorities was directed to examine the correctness of the said allegations made by the petitioner. The relevant portion of the said order dated 05.01.2018 passed by this Court in Tr.P.C No.10 of 2018 reads as follows: _Petitioner's Counsel will server a copy of the memorandum of this Transfer Petition (Civil), to the Learned Senior Government Pleader today itself. The_ 4 Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 _Learned Senior Government Pleader will get specific instructions from the competent Police Authorities concerned including the District Police Chief, Pathanamthitta, Dy.S.P. Of Police, Adoor, C.I of Police, Adoor, S.I of Police, Chakkuvally Police Station and S.I. Of Police, Chavara etc. as to the correctness of the averments made by the petitioner that he had preferred petitions regard an alleged incident that occurred on 25.11.2017 at 2.40pm, whereby he was allegedly manhandled by the henchmen of the respondent etc. and as to whether any further action like petition inquiry or registration of crime etc. has been done by the Police Authorities and as to whether such process has disclosed any prima facie correctness in the allegations made by the petitioner, in his complaints. The Learned Senior Government Pleader will ensure that the detailed statement of the competent police officer is filed on these aspects of the matter and such statement filed within two weeks. The Registry should show the name of the Senior Government Pleader in the cause list._ ## 7. Now the learned Senior Government Pleader has filed a statement on behalf of the competent Police Authorities, which reads as follows: _1. As per order dated 05.01.2018, in the above matter, this Hon'ble Court has directed us to get instructions from District Police Office, Pathanamthitta, DYSP of Police, Adoor, C.I of Police, Adoor, S.I of Police, Chakkuvally (Sooranadu) Police Station and S.I of Police, Chavara with regard to an alleged incident that occurred 25.11.2017, whereby, the petitioner was allegedly manhandled by the henchmen of the respondent._ 5 Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 _2. On instructions from above police officers I am_ - _submitting this statement herein._ _3. Alleging manhandling on 25.11.2017, by his wife and in-laws, the petitioner in the above case had filed a petition before the C.I of Police, Panthalam. Even though both parties were called including the parents, to the station for discussion they were not ready for an amicable settlement. Since the petitioner in this case has already filed a complaint before the Sub Inspector of Police, Chavara, the jurisdictional police station, no further action has been taken by Panthalam Police._ _4. Subsequently on the complaint filed by the petitioner herein alleging manhandling on 25.11.2017, S.I of Police, Chavara, has registered Crime No.95/18 and enquiry is going on. Even though the petition herein has produced a video clipping alleged to be the incident along with this complaint, it is not conclusive or as it do not patently evidence any manhandling, but only a confrontation, the S.I of Police, Chavara is still investigating the matter. Till date no other evidence could be gathered._ 8. A reading of the said statement filed by the competent Police Authorities would disclose that as of now, there are no convincing materials filed before this Court to establish that the said allegations made by the respondent is correct, except some incident of confrontation between the parties. A crime has been registered and the matter has now been investigated by the Station House Officer, Chavara. 6 Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 9. Sri. Harish Gopinath, learned counsel for the petitioner in Tr.P.(C) No.824/2017 would submit that the entire allegations made by the husband; as regards the alleged harm caused by her family members are untrue and false and that she and her family members have not caused any harm to the husband and that they would not commit any activity to cause any harm or threat to husband and that his free movement and access to the Family Court will not be in any manner obstructed by her and her family members etc. The said undertaking made on behalf of the wife is recorded. 10. In the judgments of the Apex Court as in _**Sumitha Singh v. Kumar Sanjay & Anr.**_ reported in (2001) 10 SCC 41, _**Rajwinder Kaur v. Balwinder Singh**_ reported in (2003) 11 SCC 726, _**Mona Aresh Goel v. Aresh Satya Goel**_ , reported in (2000) 9 SCC 255, _**Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap**_ , reported in AIR 2016 SC 3584, etc. it has been held that in the matter of transfer of cases from one Family Court to another, inconvenience to wife should be given special consideration by the courts, etc. 11. In the light of the above, this Court is inclined to allow the prayers in the transfer petition filed by the wife and this Court is ## 7 Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 not inclined to allow the prayers in the transfer petition filed by the husband. As of now, there are three litigating proceedings pending before the Family Courts as between these parties and out of which, two are at Family Court, Chavara and one is at Family Court, Pathanamthitta. Therefore, it is better that all these three matters are proceeded before the same court. In the light of the above facts and circumstances, this Court is inclined to grant the prayer made by the wife, in the transfer petition filed by her. Accordingly, it is ordered that the prayer in Tr.P.C. No.824/2017 is allowed and O.P. (HMA)No.752/2017 is transferred from Family Court, Pathanamthitta to Family Court, Chavara. It is also ordered that the prayers made in Tr.P.(C) No.10/2018 and Tr.P (Criminal) 1/2018 are declined. 12. However, it is ordered in the interest of justice that in case, the husband is to face any untoward incident in future, in connection with attending the proceedings at Family Court concerned, through the actions of the wife or her family members etc., then he would immediately file a petition before the Family Court, Chavara, bringing to the notice of that court, about such incident. The husband should also file appropriate petitions before the Station House Officer concerned, as also District Police Chief of 8 ## Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 the area concerned. In such case, the said competent Police Authorities concerned will take necessary action, in accordance with law on such petitions. In such eventuality, the husband will be at liberty to file appropriate applications in these petitions seeking to reopen the proceedings on account of the alleged violation of the undertaking made by the wife and this Court will consider such pleas at the appropriate time, after assessing the correctness and truthfulness of such allegations. 13. Sri. V.Sethunath the learned counsel for the husband would submit that in view of the above said aspects, the husband's apprehension about the threat of the wife and her family members for giving evidence before the Family Court, Chavara and that directions may be issued by this Court that the evidence of the husband should be recorded through the Advocate Commissioner appointed by the Family Court. It is made clear that the petitioner will be at liberty to make appropriate application in this regard and such application may be considered by the Family Court on merits and on the basis of the facts and circumstances disclosed in such application. 14. Taking into account the facts and circumstances disclosed in this petition, this Court is inclined to consider the plea 9 Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 for transfer of O.P.(HMA) No.752/2017 pending on the file of the Family Court, Pathanamthitta will stand transferred to the Family Court, Chavara. Accordingly, it is ordered that O.P.(HMA) No.752/2017 pending on the file of the Family Court Pathanamthitta to Family Court, Chavara. The petitioner in Tr.P.(C) No.824/2017 will produce a certified copy of this order before the Family Court, Pathanamthitta, without further delay. Upon receipt of the copy of the order, the Family Court, Pathanamthitta will take steps to ensure that the case papers and case records in relation to O.P. (HMA)No.752/2017 pending on the file of that court are transmitted to the Family Court, Chavara. After receiving the case papers and case records in relation to O.P.(HMA)No.752/2017, the Family Court, Chavara will issue notices to both parties and proceed further with the matter, in accordance with law. 15. In order to alleviate the difficulties of the parties for personally attending before the Family Court, it is ordered in the interest of justice that it will be open to both parties to make appropriate applications for exemption from personal appearance before the Family Court, upon which, the said request may be considered favourably, provided the parties are represented through Advocates. However, it is made clear that the petitioner (wife) and 10 Tr.P.C Nos.824 of 2017, 10 of 2018 and Tr.P(Criminal) No.1 of 2018 respondent (husband) will have to appear before the Family Court at the time of counseling and mediation process, etc. and as and when specifically so directed by the Family Court. With the above observations and directions, the aforecaptioned Transfer Petition (Civil) stands finally disposed of. Sd/- **ALEXANDER THOMAS, Judge.** **SB/07/02/2018** **// true copy //** **P.A to Judge**