Kerala High Court
Remya R vs Sujio Kumar S on 11 November, 2016
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938
Tr.P(C).No. 134 of 2016
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OP(HMA) 66/2016 OF FAMILY COURT, CHAVARA
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PETITIONER(S):
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REMYA R., AGED 33 YEARS,
D/O.RAVEENDRAN, RAVI MANDIRAM, CHERUKUNNAM,
VARKALA P.O., VARKALA VILLAGE, VARKALA TALUK,
THIRUVANANTHAPURAM - 695 145.
BY ADVS.SRI.S.KRISHNAKUMAR (VARKALA)
SRI.R.SANTHOSH (VARKALA)
SRI.A.CHANDRA BABU
SMT.S.V.HARITHA
RESPONDENT(S):
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SUJIO KUMAR S., AGED 39 YEARS,
S/O.SASIDHARAN, SUNI BHAVAN, MAMPALLIKUNNAM,
CHATHANNOOR P.O., MEENADU VILLAGE, KOLLAM TALUK,
KOLLAM - 691 572.
BY ADV. SRI.K.V.ANIL KUMAR
THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11-11-2016, ALONG WITH TPC. 437/2016, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
PJ
Tr.P(C).No. 134 of 2016
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE P1. COPY OF THE ORIGINAL PETITION FILED AS OP.(HMA)
NO.66/2016 ON THE FILES OF THE HONOURABLE FAMILY
COURT, CHAVARA (ORIGINALLY FILED BEFORE THE
HONOURABLE FAMILY COURT, KOLLAM AS OP(HMA)
NO.524/2014)
ANNEXURE P2. COPY OF THE ORIGINAL PETITION ON THE FILES OF THE
HONOURABLE FAMILY COURT, ATTINGAL AS OP.721/2015
RESPONDENT(S)' ANNEXURES
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K.RAMAKRISHNAN, J.
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Tr.P.(C)Nos.134 of 2016 & 437 of 2016
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Dated this the 11th day of November, 2016
ORDER
Tr.P.C.134/2016 was filed by the wife to transfer O.P.66/2016 pending before the Family Court, Chavara to Family Court, Attingal, while Tr.P.C.437/2016 was filed by the husband to transfer O.P.721/2015 pending before the Family Court, Attingal to Family Court, Chavara, both under Article Section 24 of the Code of Civil Procedure.
2. The common case of the petitioners in both these cases was that, the marriage between them was solemnised on 28.05.2005 and two children were born to them in that wedlock who are aged 10 years and 4 years respectively. There was some dispute arose between the parties and thereafter they were living separately. The children are with the mother and she is now residing in her parental house at Attingal. The husband filed O.P.109/20105 before the Family Court, Attingal for permanent custody of the children and that court has passed an interim order directing the respondent to give custody of the children with some condition on visitorial right. The husband filed O.P.524/2014 before the Family Court, Kollam for dissolution of the marriage, which was later transferred to Family Court, Chavara where it was re-numbered as O.P.66/2016. The wife filed Tr.P.(C)Nos.134 of 2016 & 437 of 2016 2 O.P.721/2015 on the file of the Family Court, Attingal for return of gold ornaments and other monetary relief including maintenance. The Attingal Court has passed interim maintenance to the children and the wife and he is regularly paying the maintenance to them. The petitioner was declared exparte in O.P.721/2015 and he filed I.A.187/2016 to set aside the exparte order and the wife's counsel asked as to why he did not file compromise petition and withdraw the case in the Family Court, Chavara, the court below did not even permit the counsel for the husband to explain the circumstances of failure of re-union. The Family Court asked as to why he did not withdraw the divorce petition and shouted against the petitioner and allowed the application to set aside the exparte decree on heavy cost of Rs.50,000/-, which is being challenged by the petitioner by filing O.P. (F.C)141/2016 before this court and this court has stayed further proceedings in that case. According to the wife, she is finding it difficult to go to Chavara to conduct the case from Attingal. So she wants the case filed by the husband to be transferred to Family Court, Attingal whereas the husband wants the case filed by the wife to be transfered to Family Court, Chavara as he apprehended that he will not get justice from that court. Hence these petitions were filed by the Tr.P.(C)Nos.134 of 2016 & 437 of 2016 3 respective parties.
3. Heard Sri.S.Krishnakumar, counsel appearing for the wife and Sri.K.V.Anilkumar, counsel appearing for the husband. Both of them argued in support of their respective cases in their petitions.
4. There is no dispute regarding the marital status of the parties and also the children born to them in that wedlock. It is also not in dispute that they are now residing separately and the wife is residing in her parental house at Attingal along with the children. It is also in away admitted that the husband himself has filed O.P.109/2015 before the Family Court, Attingal for permanent custody of the children. Admittedly that was pending before that court and interim order of custody was ordered and the wife filed O.P.721/2015 before the Family Court, Attingal for return of gold ornaments and monetary relief including the maintenance for the wife and the children and it is seen in the allegations and the petition filed by the husband that, that was decreed exparte and the petition to set aside the exparte decree was filed and that was allowed on heavy cost by the Family Court, Judge and that was challenged by the petitioner by filing O.P.(F.C) 141/2016 and further proceedings in that proceedings have been stayed by this court evidenced by Annexure-A5 produced in Tr.P.(C)Nos.134 of 2016 & 437 of 2016 4 Tr.P.C.437/2016. So in fact, in the eye of law, O.P.721/2015 is not pending but only an order to set aside the exparte decree passed, which is under challenge before this court is pending. So under such circumstances, it is not proper on the part of this court to transfer O.P.721/2015 of Family Court, Attingal to any other court. So the prayer in Tr.P.C.437/2016 cannot be granted and the same is liable to be dismissed.
5. As regards the reliefs claimed in Tr.P.C.134/2016 is concerned, admittedly the husband filed an application for custody of the children which is pending as O.P.109/2015 before the Family Court, Attingal and he does not want to get that case transfered to any other court. Admittedly the husband filed O.P.524/2014 before Family Court, Kollam for dissolution of marriage, which was later transferred to Family Court, Chavara where it was re-numbered as O.P.(HMA) 66/2016. Asking a lady with two children residing in her parental home, to go to Chavara to conduct the case will cause unnecessary hardship to her. Since the husband himself filed the petition for custody of the children, which is pending before the Family Court, Attingal, if this case is also transfered to Family Court, Attingal no hardship will be caused to him and he can conduct all the cases from Tr.P.(C)Nos.134 of 2016 & 437 of 2016 5 that court.
So under such circumstances, this court feels that it is necessary in the interest of justice to transfer O.P.66/2016 pending before the Family Court, Chavara to Family Court, Attingal for disposal.
So Tr.P.C.437/2016 is dismissed and Tr.P.C.134/2016 is allowed and O.P.(HMA) 66/2016 (old O.P.(HMA)554/2014 of Family Court, Kollam) of Family Court, Chavara is withdrawn and transferred to Family Court, Attingal to be tried along with O.P.109/2015 pending before that court. The Family Court, Chavara is directed to transmit the records in O.P.(HMA)66/2016 pending before that court to Family Court, Attingal, immediately.
Registry is directed to communicate this order to both the courts immediately.
Sd/-
(K. Ramakrishnan, Judge) //True Copy// P.A. to Judge ss