Vyshnavi Vijayan v. V.V. Ullas

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939** **Tr.P(C).No. 220 of 2017** **TO TRANSFER EP.19/2014 IN PL.NO.3103/2012 OF FAMILY COURT NEDUMANGAD TO THE FAMILY COURT, KANNUR.** **----------** ## **PETITIONER(S)** **------------** **VYSHNAVI VIJAYAN, AGED 26 YEARS, D/O.VIJAYAN, VYSHNAVI, SANJOSE SCHOOL ROAD, PULIMPARAMBA,TALIPARAMBA,KANNUR DISTRICT.** **BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH** **RESPONDENT(S):** **-------------** **V.V. ULLAS, S/O.VENUGOPALAN, KULATHINKARA PUTHENVEEDU, KEEZHARUR, KUTTIYANIKADU, NEYYATTINKARA,THIRUVANANTHAPURAM-695 121.** **BY ADV. SRI.P.SHANES METHAR** **THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-02-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** ## **Tr.P(C).No. 220 of 2017** ## **APPENDIX** **PETITIONER(S)' ANNEXURES ------------------------** **ANNEXURE A1:- THE TRUE COPY OF THE AWARD DATED 8.12.2012 OF THE LOK ADALATH ,THIRUVANANTHAPURAM.** **ANNEXURE A2:- THE TRUE COPY OF THE APPLICATION IN O.P.NO.897/13 DATED 10.12.2013 FILED BY THE PETITIONER AND THE RESPONDENT BEFORE THE FAMILY COURT, KANNUR.** **ANNEXURE A3:- THE TRUE COPY OF THE ORDER DATED 27.6.2014 IN O.P.NO.897/13 OF FAMILY COURT, KANNUR. ANNEXURE A4:- THE TRUE COPY OF THE E.P.19/14 IN PL.NO.3103/2012 DATED 28.2.2014 FILED BY THE RESPONDENT. BEFORE THE FAMILY COURT, NEDUMANGAD.** **RESPONDENT(S)' EXHIBITS** **------------------------** **EXHIBIT R1(A):- TRUE COPY OF THE JUDGMENT IN OP(FC)NO.384/2014 ON THE FILE OF HON'BLE HIGH COURT AT KERALA.** **EXHIBIT R1(B):- TRUE COPY OF MEDICAL CERTIFICATE DATED 13.9.2017 ISSUED BY ASSISTANT SURGEON.** **EXHIBIT R1(C):- TRUE COPY OF DISABILITY ASSESSMENT CERTIFICATE.** **/TRUE COPY/** **PS TO JUDGE** **TS 15/03/2018** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Tr.P.(C) No.220 of 2017 ----------------------------------------- ## Dated this the 14[th] day of February, 2018 ## _**O R D E R**_ The prayer in this Transfer Petition (Civil) is as follows : - _“(i) Transfer E.P.No.19/2014 in P.L.No.3103/2012 before the Family Court, Nedumangad, to Family Court, Kannur at Taliparamba Camp sitting.”_ 2. Heard Sri.Sunil Nair Palakat, learned counsel appearing for the petitioner and Sri.P.Shanes Methar, learned counsel appearing for the respondent. 3. The petitioner herein is the wife of the respondent herein. Differences of opinion between the parties have led to matrimonial disputes. The respondent - husband had filed a pre-litigation petition before the Lok Adalat, Thiruvananthapuram, by invoking the enabling provisions contained in the Legal Services Authorities Act. The said petition was numbered as PL No.3103/12 on the file of the Lok Adalat, Thiruvananthapuram. It is common ground that a compromise award was passed in that petition as per Annexure-A1 award dated 8.12.2012 by the Lok Adalat, Thiruvananthapuram, whereby the parties agreed as follows : > _“a. The parties are decided to file an application for divorce on mutual consent before the concerned court and to obtain an order of divorce on mutual consent._ - _b. The custody of the minor child would be with the petitioner_ : **:2::** Tr.P.(C) No.220/17 _herein. But the first week of the every month, the petitioner herein has to handover the custody of the minor child to the respondent herein. But when he grown up to attend school, the respondent shall get the custody of the child for a period of 15 days during school vacation.”_ 4. The petitioner would submit that she is now permanently residing at Kannur and there is none to look after her child and she finds it extremely difficult to travel all the way from Kannur to Nedumangad for attending to the litigative proceedings in Annexure-A4. According to the petitioner, she was regularly complying with her part of the compromise in terms of the conditions stipulated in Annexure-A1 award with regard to the custody of the child till recently. It is also stated that based on the compromise award, the parties had filed Annexure-A2 O.P.No.897 of 2013 before the Family Court, Kannur, for grant of divorce on mutual consent under Section 13B of the Hindu Marriage Act on 10.12.2013. It is further stated that when Annexure-A2 O.P.No.897 of 2013 was posted before the Family Court, Kannur, on 17.6.2014 for appearance, the respondent herein had not appeared and hence, Annexure-A2 O.P. was dismissed as per Annexure-A3 order dated 17.6.2014. It is averred that the respondent had unilaterally withdrawn from the terms and conditions of the compromise award. It is stated by the petitioner that the respondent is bound to obey the conditions in Annexure-A1 award in the matter of divorce on the ground of mutual consent. The respondent had thereafter filed Annexure-A4 Execution : **:3::** Tr.P.(C) No.220/17 Petition E.P.No.19 of 2014 before the Family Court, Nedumangad, to execute the second part of Annexure-A1 award to the extent it related to the custody of the child. It is thus Annexure-A4 Execution Petition that is sought to be transferred to the Family Court, Kannur, at the instance of the petitioner - wife. 5. The respondent - husband has filed a counter affidavit stating that the petitioner had earlier filed O.P.(FC) No.384 of 2014 before this Court to challenge Annexure-A1 award and the said O.P. (FC) No.384 of 2014 was dismissed by this Court as per Annexure R1(A) judgment dated 17.2.2017. Further it is stated that the respondent had met with a serious road accident as evidenced from Annexures-R1(B) and R1(C) and he is suffering from 60% disability as per Annexure-R1(C) Medical Certificate, etc. and that he finds it extremely difficult to travel all the way from Nedumangad in Thiruvananthapuram District to Kannur, if Annexure-A4 E.P. is allowed. As regards Annexure-R1(A), it is seen that the contention raised by the petitioner-wife herein was to the effect that due to the unilateral violation of the husband regarding the terms and conditions of the award, the same is no longer executable, etc. This Court has held in Annexure R1(A) judgment that if the petitioner has a contention that the said award is not executable for any valid reasons, it is for the petitioner to raise grounds and objections before the execution court, etc. Therefore, : **:4::** Tr.P.(C) No.220/17 the findings and directions in Annexure-R1(A) judgment by itself, will not in any manner disentitle the petitioner for the present reliefs concerned. As regards the road accident said to have been suffered by the respondent, it is now stated by the counsel for the respondent that the respondent had met with the accident in 2012 before the rendering of Annexure-A1 award dated 8.12.2012. It is submitted on behalf of the respondent that the respondent because of his disability could not travel all the way from Nedumangad, Thiruvananthapuram to the Family Court, Kannur, for attending to the abovesaid Annexure-A2 divorce O.P. It is also submitted that the respondent had not unilaterally withdrawn from the terms and conditions and that even now the respondent is ready and willing for the grant of divorce on the basis of the mutual consent as agreed to by the parties in Annexure-A1 award. The said submission made on behalf of the respondent is recorded. As regards the difficulties expressed by the respondent that he finds it extremely difficult to travel all way from Nedumangad, Thiruvananthapuram to Kannur, it is to be noted that those aspects could be alleviated by issuing necessary directions in the matter of grant of personal exemption. 6. 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**_ : **:5::** Tr.P.(C) No.220/17 _**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 caused to the wife should be given special consideration by the courts. 7. In the lights of the abovesaid aspects, this Court is inclined to consider the plea for transfer made in this petition. Accordingly, it is ordered that Annexure-A4 Execution Petition, E.P.No.19 of 2014 (arising out of P.L.No.3103 of 2012 of the Lok Adalat) which is now pending before the Family Court, Nedumangad, will stand transferred to the Family Court, Kannur. The petitioner will produce a certified copy of this order before the Family Court, Nedumangad, without further delay. Upon receipt of the copy of the order, the Family Court, Nedumangad, will take steps to ensure that the case papers and case records in relation to Annexure-4 E.P.No. 19 of 2014 pending on the file of that court are transmitted to the Family Court at Kannur. After receiving the case papers and case records in relation to E.P.No.19 of 2014, the Family Court at Kannur, will issue notices to both parties and proceed further with the matter, in accordance with law. 8. In view of the physical disabilities suffered by the petitioner, it is ordered that the respondent will be at liberty to make appropriate application before the Family Court, Kannur, for grant of exemption from personal appearance in E.P.No.19 of 2014 and the said application : **:6::** Tr.P.(C) No.220/17 could be accompanied by necessary Medical Certificate at Annexure R1(B) and Annexure R1(C) and the Family Court, Kannur, will favourably consider such request, provided the petitioner is represented through the Advocate before the Family Court. Learned counsel for the petitioner submits that the petitioner will not object to the grant of any such personal exemption to the respondent. If the respondent is intending to adduce any oral evidence in the matter, it will be open to the respondent to file proof affidavit in lieu of chief examination and it will also be open to the respondent to record his oral evidence in his residence at Nedumangad, or in any other convenient venue through an Advocate Commissioner in which case it shall be considered by the Family Court, etc. With these observations and directions, the Transfer Petition (Civil) will stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl