Kerala High Court
Jisha Thomas vs George Thomas on 13 August, 2021
Author: V.G.Arun
Bench: V.G.Arun
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
TR.P(C) NO. 141 OF 2020
OP 2338/2019 OF FAMILY COURT, ERNAKULAM
PETITIONER/S:
JISHA THOMAS
AGED 39 YEARS
D/O. THANKAMMA THOMAS, PUTHENKOYIPPARAMPIL HOUSE,
PALLIPPURAM P.O, CHERTHALA, ALAPPUZHA DISTRICT,
PIN 688 541
BY ADV SRI.GOPAKUMAR R.THALIYAL
RESPONDENT/S:
GEORGE THOMAS
AGED 42 YEARS
S/O. K.V THOMAS, RESIDING AT KONTHIYAMADATHIL,
THANKAMANI P.O, IDUKKI, NOW WORKING AS MOTOR
VEHICLE INSPECTOR, R.T.O, KASARGODE, PIN CODE 671
121
BY ADVS.
DR.SEBASTIAN CHAMPAPPILLY
SRI.P.A.SAINUDEEN
DR.ABRAHAM P.MEACHINKARA
SRI.GEORGE CLEETUS
SMT.MARGARET MAUREEN DROSE
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2021 ALONG WITH TRPC 186/2020, THE COURT
ON 13.08.2021 DELIVERED THE FOLLOWING:
Tr.P.(C) No.141 & 186/2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
TR.P(C) NO. 186 OF 2020
OP 861/2019 OF FAMILY COURT, ALAPPUZHA
PETITIONER/S:
GEORGE THOMAS
AGED 42 YEARS
S/O.K.V.THOMAS, KONTHIAMADATHIL HOUSE,
THAIKKATTUKARA P.O., ALUVA, ERNAKULAM DISTRICT,
PIN-683106.
BY ADVS.
SEBASTIAN CHAMPAPPILLY
SRI.P.A.SAINUDEEN
DR.ABRAHAM P.MEACHINKARA
SRI.GEORGE CLEETUS
SMT.MARGARET MAUREEN DROSE
RESPONDENT/S:
JISHA THOMAS
AGED 40 YEARS
D/O.K.C.THOMAS, KOYIPPARAMBIL HOUSE, PALLIPPURAM
P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN-688541.
BY ADV SRI.GOPAKUMAR R.THALIYAL
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2021 ALONG WITH TRPC 141/2020, THE COURT
ON 13.08.2021 DELIVERED THE FOLLOWING:
Tr.P.(C) No.141 & 186/2020
3
"CR"
ORDER
Dated this the 13th day of August, 2021 The spouses are at loggerheads. Imputations of infidelity has rendered the marriage more a sacrilege than a sacrament. The husband has filed OP Nos.2329 and 2337 of 2019 and O.P.(G&W) No.2338 of 2019 before the Family Court, Ernakulam. Not to be outdone, the wife approached the Family Court, Alappuzha with O.P.(G&W) No.860 of 2019 and O.P.No.861 of 2019. Tr.P.(C) No.141 of 2020 is filed by the wife seeking transfer of the cases filed by the husband from the Family Court, Ernakulam to the Family Court, Alappuzha and Tr.P. (C) No.186 of 2020, by the husband for transferring the cases filed by the wife from the Tr.P.(C) No.141 & 186/2020 4 Family Court, Alappuzha to the Family Court, Ernakulam.
2. The parties belong to the Roman Catholic Syrian Christian Community. Their marriage was solemnised on 19.11.2006 at the Vijnana Matha Church, Thodupuzha. Two boys, now aged 13 and 11, are born in the wedlock. The family was staying at Thaikkattukara in Aluva and the children were studying at the Rajagiri Public School. In 2019, the spouses parted ways and the wife along with the children moved over to her parental house at Pallippuram. The wife took the children along with her and got them admitted to the St.Mary of Leuca Higher Secondary School, Pallippuram.
3. Among the original petitions filed by the husband, O.P.No.2329 of 2019 is for divorce, O.P.No.2337 of 2019 for declaring the liability of the wife to pay an amount of Rs.47,10,080/-, which Tr.P.(C) No.141 & 186/2020 5 the husband claims to have spent for purchase of immovable property, construction of residential house, purchase of car etc, and for declaration of the husband's title over half of the property purchased in the joint names of the husband and wife. O.P.(G&W) No.2338 of 2019 is for getting custody of the minor children and to declare the husband as their natural guardian. The wife has filed O.P.(G&W) No.860 of 2019 for declaring her as the guardian and custodian of the minor children and O.P.No.861 of 2019, for recovery of gold ornaments, movables and money.
4. Heard Dr. Sebastian Champappilly, learned Counsel for the petitioner and Sri. Gopakumar Thaliyal, learned Counsel for the respondent.
5. Shorn of the disputed factual contentions, which I am not bound to consider in these transfer petitions, the legal contentions put forth by Dr. Tr.P.(C) No.141 & 186/2020 6 Sebastian Champappilly are as under;
The marriage having been solemnised at Thodupuzha, proceedings under the Divorce Act has to be filed either before the Family Court, Thodupuzha or the Family Court, Ernakulam, within the limits of which the parties had last resided together. The original petition for divorce under Section 10(1) (x) of the Divorce Act is accordingly filed before the Family Court, Ernakulam. As per Section 45 of the Divorce Act, its provisions will prevail over the provisions of the Civil Procedure Code. Section 8 of the Divorce Act confers power on the High Court to withdraw any suit or proceeding instituted under the Act and to transfer it for trial or disposal to the court of any District Judge. As per Section 3(2) of the Act, District Judge means a Judge of a Principal Civil Court of Original jurisdiction. Tr.P.(C) No.141 & 186/2020 7 District Court is defined under Section 3(3) as the Court of the District Judge within the local limits of whose jurisdiction the marriage was solemnised or the husband and wife last resided together. The husband having instituted the original petition under the Divorce Act before the jurisdictional Family Court, it cannot be transferred in exercise of the power under Section 24 CPC. Section 14 of the Guardian and Wards Act stipulates that, if the proceedings for declaration of guardianship of a minor are pending before more courts than one, each of those courts shall, on being appraised of the proceedings in the other court or courts, stay the proceedings before itself. The husband having filed OP (G&W) No.2338 of 2019 before the Family Court, Ernakulam, prior to the filing of O.P(G&W) No.860 of 2019 by the wife, the subsequent original Tr.P.(C) No.141 & 186/2020 8 petition is liable to be stayed. The husband has filed I.A.No.1711 of 2019 in O.P.(G&W) No.860 of 2019, requiring the Family Court, Alappuzha to stay that original petition in terms of Section 14 of the Guardian and Wards Act. O.P.No.861 of 2019, filed by the wife for return of gold ornaments and money is also liable to be stayed in exercise of the power under Section 10 CPC. Further, it is necessary to have all the cases before one court, so as to avoid multiplicity of proceedings and divergent findings.
6. In reply, Sri.Gopakumar R.Thaliyal put forth the following contentions;
As the children are residing with the wife and are studying in a school at Pallipuram, the Family Court, Alappuzha is the jurisdictional court in terms of Section 9 of the Guardian and Wards Act. The wife will be put to undue hardship and misery Tr.P.(C) No.141 & 186/2020 9 if she is compelled to contest the cases before two courts. The legal position, as settled by a series of decisions of the Honourable Supreme Court is that, in transfer petitions pertaining to matrimonial disputes, the convenience of the wife should be given preference over that of the husband. The power conferred on this Court under Section 24 CPC is not subservient to the provisions of the Divorce Act.
7. The jurisdictional aspect of the original petitions filed by the husband and wife under the Guardian and Wards Act is covered by Section 9(1) of the Guardian and Wards Act, which reads as under:
"(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. "
The husband alleges that the children were forcibly taken away without his consent and Tr.P.(C) No.141 & 186/2020 10 therefore, their residence at Pallippuram cannot be termed as 'ordinary residence'. It is pertinent to note that the children are residing with their mother and are studying in a School at Pallippuram. Any residence other than temporary abode or a place where a person is compelled to stay by force of circumstances will fall within the meaning of ordinary residence. The question as to whether the children were forcibly taken away by the wife against their will, is yet to be decided. As of now, there is no material before this Court to arrive at such a conclusion. Being so, there has to be a valid reason for transferring O.P.(G&W) No. 860 of 2019 filed by the wife to the Family Court, Ernakulam. Other than the contention of the husband that the children were clandestinely taken away from his custody and O.P.(G&W) No.2338 of 2019 was filed by Tr.P.(C) No.141 & 186/2020 11 him first, no other contention is raised. The said reasons are thoroughly insufficient for transferring the original petition from the jurisdictional court to a court without jurisdiction, the welfare and convenience of the children being the paramount consideration. Hence the prayer for transferring O.P.(G&W) No.860 of 2019 filed by the wife is rejected. As it is essential to have both the original petitions before the same court, O.P.(G&W) No. 2338 of 2019 filed by the husband is liable to be transferred to the Family Court, Alappuzha.
8. As the original petition under the Guardian and Wards Act filed by the husband is being transferred to the Family Court where the original petition filed by the wife is pending, the contention based on Section 14 of the Guardian and Wards Act is rendered irrelevant, since the Tr.P.(C) No.141 & 186/2020 12 provision applies only when proceedings are simultaneously pending in different courts.
9. As far as the contention regarding supremacy of the provisions of the Divorce Act over the Civil Procedure Code is concerned, having filed his transfer petition under Section 24 CPC, the husband is estopped from raising such a contention. Even then, being a legal issue, the contention is liable to be answered. Section 45 of the Divorce Act postulates that the proceedings between parties shall be regulated by the Code of Civil Procedure, subject to the provisions contained in the Act. Therefore, except for the provisions of the Code which are contradictory to a particular provision of the Act, the provisions of the Code will apply. A similar question was considered by the Supreme Court in Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry Tr.P.(C) No.141 & 186/2020 13 [(1981) 2 SCC 646], when its power to transfer cases under Section 25 of CPC was challenged on the premise that the power is excluded under Sections 21 and 21A of the Hindu Marriage Act, which are provisions analogous to Section 45 of the Divorce Act. The challenge was set at naught, holding that Section 21 of the Hindu Marriage Act does not make any distinction between procedural and substantive provisions of the CPC and is intended to exclude only such provisions of the Code as are, or may be, inconsistent with any of the provisions of the Act. The Apex Court held that such provisions of the Code that partake the character of substantive law are not excluded by implication and that a particular provision of the Code, irrespective of whether it is procedural or substantive, will cease to apply only if it is inconsistent with any of the provisions of the Tr.P.(C) No.141 & 186/2020 14 Act. Later in Usha v. Palisetty Mohan Rao [(2002)10 SC 544], the power for transfer vested with the Supreme Court under Section 25 of CPC was questioned on the premise that it would not be appropriate to transfer a case filed under Section 13 of the Hindu Marriage Act to a court which has no jurisdiction under that Act. The challenge was repelled by the Apex Court holding that if the argument is accepted then no transfer of any case can be made, inasmuch as the matter would have been in a court having jurisdiction to deal with it. It was held that such an interpretation would stultify the process of law and render nugatory, the provisions relating to transfer.
10. It is pertinent to note that even under Section 8 of the Divorce Act, the High Court is conferred with the power to withdraw any suit or proceeding and to transfer it for trial or Tr.P.(C) No.141 & 186/2020 15 disposal to the court of any other District Judge. In Mabel Treeza Pinto v. Francis Pinto [(2005) 7 SCC 761], the Apex Court held that the intention behind Section 8 is to give the High Court an overriding power to transfer a suit or any proceeding initiated under the Act from the court of one District Judge to any other District Judge within its jurisdiction. Paragraph 7 of the judgement, which is contextually relevant, is extracted here under;
"7. If the power of the High Court is to be construed as being limited to transfers within the territorial limitations of a District Judge, it would defeat the object and express purpose of Section 8 and render it virtually nugatory. The power to transfer a proceeding within the territorial limits of a District is exercisable even by a District Judge under Section 24 of the Code of Civil Procedure. The intention behind Section 8 of the Act is to give the High Court an overriding power to transfer a suit or any proceeding initiated under the Act from the Court of one District Judge to any other District Judge within its jurisdiction. The words "its jurisdiction" means the jurisdiction of the High Court. Therefore Tr.P.(C) No.141 & 186/2020 16 when by the second portion of Section 8 the High Court has been given the additional power of transferring any such suit or proceeding for trial and disposal to the court to any other such District Judge, it is a reference to a District Judge within the territorial limits of the High Court. The transferee court does not necessarily have to have territorial jurisdiction to try the transferred proceeding or suit. The only limitation is that the Court to which the suit is transferred must be a Principal Civil Court of original jurisdiction within the meaning of Section 3 sub-section (2)."
As per Section 7(1) of the Family Courts Act, the jurisdiction exercisable by the District Courts and Subordinate Civil Courts, in respect of suits and proceedings of the nature referred to in the Explanation to Section 7(1), is vested with the Family Court. By Section 8 of the Family Courts Act, the jurisdiction of District Courts and Subordinate Civil Courts referred to in Section 7(1), stands excluded. Understanding the decision in Mabel Treeza Pinto in the above context, it has to be held that in exercise of the power under Tr.P.(C) No.141 & 186/2020 17 Section 8 of the Divorce Act, the High Court can transfer a suit or proceeding from a Family Court to any other Family Court, irrespective of whether the transferee court is having territorial jurisdiction to try the case.
11. As far as the power under Section 24 of CPC is concerned, it is trite that the competence spoken of in Section 24 CPC should be reckoned as jurisdiction over the subject matter and not territorial jurisdiction. See; Sherly v. Sukumariamma and others [2011 (3) KLT 200].
12. The wife is seeking transfer of the proceedings filed by the husband on the premise that commuting from Alappuzha to Ernakulam is extremely difficult. The wife has averred that her mother is aged and there is no one to accompany her to Ernakulam. In Leena Mukherjee v. Rabi Shankar Mukherjee, [2002 10 SCC 480], the Apex Tr.P.(C) No.141 & 186/2020 18 Court has held the wife's lack of companion to travel to the court to be an appropriate reason for transfer. In Sumita Singh v Kumar Sanjay and another [(2001) 10 SCC 41] and Rajani Kishor Pardeshi v Kishor Babulal Pardeshi [(2005) 12 SCC 237] and a plethora of other decisions, it is held that in transfer petitions arising from matrimonial cases, convenience of the wife should be preferred over that of the husband. Hence, the prayer for transferring OP Nos.2329 and 2337 of 2019 and O.P.(G&W) No.2338 of 2019 of the Family Court, Ernakulam to the Family Court, Alappuzha is allowed, reserving the husband's liberty to move the transferee court under Section 10 CPC seeking stay of the trial and further proceedings in O.P.No.2337 of 2019. Consequently, the prayer for transfer of O.P.No.861 of 2019 filed by the wife stands rejected. Tr.P.(C) No.141 & 186/2020 19 In the result, Tr.P.(C) No.186 of 2020 is dismissed and Tr.P(C) No.141 of 2020 is allowed. OP Nos.2329 and 2337 of 2019 and O.P.(G&W) No.2338 of 2019 shall forth with be transferred to the Family Court, Alappuzha. The transferee court shall not insist on personal presence of the parties, unless absolutely necessary.
Sd/-
V.G.ARUN JUDGE Scl/ Tr.P.(C) No.141 & 186/2020 20 APPENDIX OF TR.P(C) 141/2020 PETITIONER ANNEXURE ANNEXURE 1 TRUE COPY OF THE PETITION IN OP NO.
860/2019 ON THE FILE OF THE FAMILY COURT, ALAPPUZHA DATED 18-10-2019 ANNEXURE II TRUE COPY OF THE PETITION IN OP NO.
861/2019 ON THE FILE OF THE FAMILY COURT, ALAPPUZHA DATED 18-10-2019 ANNEXURE III TRUE COPY OF THE PETITION IN MC NO.
117/2019 ON THE FILE OF THE FAMILY COURT, ALAPPUZHA DATED 18-10-2019. ANNEXURE IV TRUE COPY OF THE PETITION IN OP NO.
2329/2019 ON THE FILE OF THE FAMILY COURT, ERNAKULAM DATED 09-10-2019 ANNEXURE V TRUE COPY OF THE PETITION IN OP NO.
2337/2019 ON THE FILE OF THE FAMILY COURT, ERNAKULAM DATED 10-10-2019 ANNEXURE VI TRUE COPY OF THE PETITION IN OP NO.
2338/2019 ON THE FILE OF THE FAMILY COURT, ERNAKULAM ANNEXURE VII TRUE COPY OF THE IINUCTION ORDER IN I.A NO. 1610/2019 IN O.P NO. 860/2019 ON THE FILE FO THE FAMILY COURT, ALAPPUZHA DATED 19/10/2019 Tr.P.(C) No.141 & 186/2020 21 APPENDIX OF TR.P(C) 186/2020 PETITIONER ANNEXURE ANNEXURE 1 (TRUE PHOTOCOPY OF O.P.NO.2329 OF 2019 FOR A DECREE OF DIVORCE FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT ERNAKULAM DATED 9.10.2019).
ANNEXURE 2 (TRUE COPY OF O.P. (G&W) NO.2338 OF 2019 DATED 10.10.2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM).
ANNEXURE 3 (TRUE COPY OF O.P.NO.2337 OF 2019 DATED 10.10.2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT ERNAKULAM FOR RECOVERY OF MONEY).
ANNEXURE 4 (TRUE COPY OF ORDER IN I.A.NO.5483 OF 2019 IN O.P.NO.2337 OF 2019 DATED 11.10.2019).
ANNEXURE 5 (TRUE COPY OF O.P. (G&W) NO.860 OF 2019 DATED 19.10.2019 FILED BY THE RESPONDENT AS PETITIONER BEFORE THE FAMILY COURT AT ALAPPUZHA).
ANNEXURE 6 (TRUE COPY OF PRELIMINARY OBJECTION DATED 2.11.2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT ALAPPUZHA). ANNEXURE 7 (TRUE COPY OF I.A.NO.1711 OF 2019 IN O.P. (G&W) NO.860 OF 2019 DATED 2.11.2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ALAPPUZHA). ANNEXURE 8 (TRUE COPY OF O.P.NO.861 OF 2019 DATED 19.10.2019 FILED BY THE RESPONDENT AS PETITIONER BEFORE THE FAMILY COURT AT ALAPPUZHA FOR RECOVERY OF GOLD Tr.P.(C) No.141 & 186/2020 22 ORNAMENTS AND PRESENTATION ARTICLES).