Kerala High Court
Vidhya Mundekkat vs Akhilesh Jayaram on 1 July, 2021
Equivalent citations: AIRONLINE 2021 KER 765
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
TR.P(C) NO. 283 OF 2021
OP 749/2020 OF FAMILY COURT, KOZHIKODE
PETITIONER/S:
VIDHYA MUNDEKKAT
AGED 34 YEARS
D/O. KESAVAN MUNDEKKAT, KAILAS BHAVAN, 129,
AMRITHPURI AMRITHAPURI P.O. VALLIKKAVU,
KARUNAGAPPALLY, KOLLAM 690 546, (FROM AMRUTHAM, NEAR
ULLOOR TEMPLE, MERIKUNNU P.O. KOZHIKODE 673 017.
BY ADV B.MOHANLAL
RESPONDENT/S:
AKHILESH JAYARAM
AGED 40 YEARS
S/O. P.C. JAYARAM, AISWARYA, GANAPATHYKAVU ROAD, EAST
HILL, WEST HILL P.O. KOZHIKKODE 673 005 (FROM 4/19,
III STREET, SAIBABA COLONY, VIRUGAMBAKKOM, CHENNAI
600092.
BY ADV K.A.SALIL NARAYANAN
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2021, THE COURT ON 01.07.2021, DELIVERED THE FOLLOWING:
Tr.P.C No.283 of 2021
2
ORDER
Dated this the 01st day of July, 2021 Petitioner and the respondent are wife and husband. Their marriage was solemnised on 31.01.2011. Marital discord among the spouses resulted in the petitioner filing O.P.No.354 of 2019 before the Family Court, Kozhikode seeking restitution of conjugal rights and M.C.No.31 of 2016 before the Judicial First Class Magistrate Court-I, Kozhikode, under the Protection of Women from Domestic Violence Act. In turn, the respondent filed O.P.(G&W) No.574 of 2017 for guardianship and custody of the minor daughter and O.P.No.749 of 2020 for dissolution of marriage, before the Family Court, Kozhikode. The M.C and the original petition under the Guardian and Wards Tr.P.C No.283 of 2021 3 Act were dismissed. The prayer in this petition is to transfer O.P.No.354 of 2019 and 749 of 2020 to the Family Court, Chavara since the petitioner has shifted her residence to an apartment in Amrithapuri, Karunagappally, Kollam.
2. Heard Sri.B.Mohanlal, learned Counsel for the petitioner and Sri.Salil Narayanan K.A, learned Counsel for the respondent.
3. Learned Counsel for the petitioner submitted that at the time when O.P.No.354 of 2019 was filed before the Family Court, Kozhikode, the petitioner was residing in Kozhikode. The petitioner and her parents are devotees of Matha Amrithananthamayi and from April 2018 onwards, all of them shifted to a flat in Amritapuri in Karunagappally. The minor girl child, now aged 8 years, is residing with the petitioner and is studying in the second standard in Amrita Vidyala Tr.P.C No.283 of 2021 4 in Karunagappally from 13.04.2018 onwards. Moreover, the petitioner has to travel about 330 Kms to attend the Family Court at Kozhikode. No inconvenience will be caused to the respondent by attending the Family Court at Chavara since he is employed at Chennai.
4. Learned Counsel for the respondent contended that the transfer petition is bereft of bonafides and the attempt, through the transfer petition, is only to harass the respondent. The respondent is undergoing treatment for chronic myocardial disease and related complications. It is submitted that in 2016, the petitioner had filed M.C.No.31 of 2016 before the JFCM-I, Kozhikode and the same was dismissed. In spite of dismissal of the M.C, the interim direction therein, to pay maintenance at the rate of Rs.10,000/- per month is being meticulously Tr.P.C No.283 of 2021 5 complied with. The petitioner had also filed MC No.52 of 2016 before the Family Court, Kozhikode seeking maintenance, suppressing the fact that she was gainfully employed during that period. During this period the petitioner was residing in her parental house at Vellimadukunnu in Kozhikode and the minor daughter was studying at Amritavidyalam, Calicult. Even though O.P.No.574 of 2017 filed by the respondent was dismissed, the Family Court permitted the respondent to interact with the child through video calls and granted custody of the child for half of Onam, Christmas and summer vacations. Accordingly, the petitioner started meeting his daughter at the Family Court. With the sole intention of thwarting the respondent's visitorial rights, petitioner obtained transfer certificate and got the child admitted at Amritavidyalam, Karunagappally. This fact was Tr.P.C No.283 of 2021 6 suppressed from the respondent for almost one year. The respondent came to know about the transfer of the child only when he enquired at the Amrita Vidyalam, Kozhikode. In the chief affidavit filed by the petitioner on 27.11.2018 in O.P.No.574 of 2017 she has shown her Kozhikode address. Taking note of the above facts, the Family Court had dismissed the petitioner's claim for maintenance and had confined maintenance to the child alone. Even in O.P.No.354 of 2019 filed by the petitioner before the Family Court, Kozhikode on 27.03.2019, she has shown her Kozhikode address. In spite of the Family Courts direction, the respondent is not being permitted to interact with the child and the child's custody is not being given to the respondent during vacations. There being no bonafides in seeking the transfer, the petition is liable to be dismissed. Tr.P.C No.283 of 2021 7
5. Learned Counsel for the petitioner clarified that the petitioner has challenged the order in O.P.No.354 of 2019 and as per the interim order in Mat.Appeal No.298 of 2021, this Court has stayed the visitorial right of the petitioner during this summer vacation.
6. From the arguments advanced, it is evident that the ground on which the transfer is sought is the shifting of residence of the petitioner from Kozhikode to Amritapuri in Karunagappally. Going by the averments in the transfer petition, the petitioner along with her daughter had shifted to Karunagappally in April, 2018. In spite of the alleged shifting, the petitioner filed O.P.No.354 of 2019 before the Family Court, Kozhikode in March, 2019 showing her Kozhikode address. O.P.No.749 of 2020 was filed before the Family Court, Kozhikode by the respondent on 24.08.2020. Tr.P.C No.283 of 2021 8 Therein also, the Kozhikode address of the petitioner is shown in the cause title. According to the learned Counsel for the respondent, the petitioner had also received notice in the said address. Interestingly, even in this transfer petition, after giving her Karungappally address, the following address is given in brackets (from Amrutham, Near Ulloor Temple, Merikunnu P.O, Kozhikode - 673 017). Hence I find substance in the contention of the respondent that the petitioner has shifted to Karunagappally only temporarily.
7. It is true that the Honourable Supreme Court has held that in the matter of transfer of cases arising out of matrimonial disputes, priority should be given to the convenience of the wife. At the same time, the Apex Court has also cautioned against showing undue leniency to ladies Tr.P.C No.283 of 2021 9 in transfer matters, as it is often misused and taken advantage of. Therefore, in Anindita Das v. Srijit Das [2006(9) SCC 197]), it has been held that the courts should decide each transfer petition on its merits.
8. The facts emanating from the pleadings and the arguments advanced indicate a deliberate attempt to get the cases transferred from the Family Court, Kozhikode. Even though the learned Counsel for the petitioner alleged that the reason behind such attempt is to defeat the visitorial rights of the respondent, I am not venturing to answer such contention in this transfer petition. Suffice it to say that I find no valid reason for transferring the original petitions from the Family Court, Kozhikode, inasmuch as the petitioner has failed to establish that she has permanently shifted her residence to Amritapuri in Tr.P.C No.283 of 2021 10 Karungappally.
9. It may also be pertinent to note that under Section 19 of the Hindu Marriage Act, 1955, petitions under the Act are to be filed before the court within the limits of whose jurisdiction (i) the marriage was solemnised (ii) the respondent, at the time of presentation of the petition, resides (iii) the parties to the marriage last resided together (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition. (iv) the petitioner is residing at the time of presentation of their petition, in a case where the respondent is, at that time, residing outside the territories to which the act extends or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive. Admittedly, the marriage was Tr.P.C No.283 of 2021 11 solemnised and the parties had last resided together at Kozhikode. Both the petitioner and the respondent were residing at Kozhikode at the time of presentation of the respective petitions. Hence, the Family Court, Kozhikode, is having territorial jurisdiction to entertain and decide the original petitions. Even though lack of territorial jurisdiction will not render the Family Court at Chavara incompetent to try and dispose the original petitions, it is a relevant factor, while considering the prayer for transfer.
For the reasons aforementioned, the transfer petition is dismissed.
sd/-
V.G.ARUN JUDGE Scl/ Tr.P.C No.283 of 2021 12 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 THE TRUE COPY OF PLAINT IN O.P. NO.
354/2019 DATED 27/03/2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOZHIKODE.
ANNEXURE A2 THE TRUE COPY OF THE PLAINT IN O.P. NO.
749/2020 DATED 24/08/2020 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOZHIKODE.