Smitha Mary George vs Deepak Chummar on 17 July, 2024

[Cites 9, Cited by 0]

Kerala High Court

Smitha Mary George vs Deepak Chummar on 17 July, 2024

These appeals have been filed by the unsuccessful petitioner in Tr. P(C) Nos.153 of 2024 and 154 of 2024 before this Court. By a common order dated 09.04.2024, a learned Single Judge of this Court has rejected both the above transfer petitions. The captioned appeals have been filed against the aforesaid common order dated 09.04.2024, in Tr.P(C)Nos.153 and 154 of 2024.

2. The appellant and the 1st respondent herein are wife and husband respectively. The marital relationship between the husband and wife was not cordial on account of many reasons alleged by either party. Ultimately, the following litigations have been instituted:

By the husband-1st respondent herein:

(i) G.O.P.No.1201 of 2023 for custody of two children before the Family Court, Aluva.

(ii) O.P.No.1133 of 2023 for divorce before the Family Court, Aluva.

By the appellant-wife:

(i) O.P.(G&W) No.205 of 2024 for parental custody of minor Dhyan Deepak, aged 4 years, before Family Court, Kottayam at Ettumanoor.

(ii) M.C.No.22 of 2024 for maintenance under Section 4 Tr. Appeal (C) Nos.6 and 8 of 2024 125 of the Criminal Procedure Code before the Family Court, Kottayam at Ettumanoor.

Thus, altogether there are four cases filed by the Appellant and the 1st respondent herein before the Family Court, Aluva (2 Nos.) and the Family Court, Kottayam at Ettumanoor (2 Nos.).

3. The appellant-wife filed Tr.P(C).No.153 of 2024 under Section 24 of the Code of Civil Procedure (for short, the 'Code'), praying for the transfer of O.P.No.1133 of 2023 filed by the respondent-husband from the Family Court, Aluva to the Family Court, Kottayam at Ettumanoor. She also filed Tr.P(C)No.154 of 2024 for the transfer of G.O.P.No.1201 of 2023 from the Family Court, Aluva to the Family Court, Kottayam at Ettumanoor.

4. A learned Single Judge of this Court, by the order dated 09.04.2024, dismissed both the above transfer petitions, finding that, out of the three children, two are in the custody of the husband and they are studying in a school at Aluva. Therefore, the prayer for transfer from the Family Court, Aluva to the Family Court, Ettumanoor cannot be granted in as much as it would be prejudicial to the interest of the children.

5. Aggrieved by the above order, the appellant-wife has filed Tr.Appeal(C) No.6 of 2024 and Tr.Appeal(C) No.8 of 2024. 5 Tr. Appeal (C) Nos.6 and 8 of 2024

6. On 13.06.2024, the 1st respondent-husband, appeared through counsel. The 2nd respondent in these appeals is the alleged adulterer, who has been impleaded in the original petition filed by the 1st respondent-husband. We have issued notice to the 2nd respondent herein also on 13.06.2024. The notice issued from this Court to the 2nd respondent has been returned with the endorsement "addressee cannot be located". However, insofar as for deciding these transfer appeals, notice need not be served on the 2nd respondent, we have dispensed with the issue of notice to the 2nd respondent in the matter.

7. We have heard the learned counsel appearing for the appellant-wife, and the learned counsel for the 1st respondent- husband.

8. The learned counsel for the appellant-wife contends that the learned Single Judge was not justified in rejecting the transfer petitions. The learned counsel pointed out that, with respect to matrimonial disputes, the convenience of the wife ought to have been given due weightage as held in a catena of decisions. On the other hand, the learned counsel for the 1st respondent- husband sought to sustain the impugned order of the learned 6 Tr. Appeal (C) Nos.6 and 8 of 2024 Single Judge. The learned counsel for the 1st respondent-husband also relied on the judgment of this Court in Reegan Jayakumar v. Shami Shahul [2015 (3) KHC 164] to contend that the request made by the appellant-wife for transfer of the cases to the court where she has instituted the suit cannot be entertained.

9. We have considered the contentions raised by the parties and perused the relevant records.

10. The judgment relied on by the learned counsel for the 1st respondent is one with respect to the institution of an application under the provisions of Section 9 of the Guardians and Wards Act, 1890 (for short, the 'Wards Act'). That was a case where the wife presented an application under Section 9 of the Wards Act, at her residence with respect to a child who was residing at Pune. A Division Bench of this Court, after making reference to the provisions under Section 9 of the Wards Act, came to the conclusion that for determining the question of jurisdiction of a court under Section 9 of the Wards Act, it is the place where the minor ordinarily resides, that is to be taken into account. But here, the question is different. The 1st respondent-husband has already instituted the petition at the Family Court, Aluva, where admittedly 7 Tr. Appeal (C) Nos.6 and 8 of 2024 the husband and the two children are residing. The said petition can be transferred under the provisions of Section 24 of the Code and for ordering such transfer, the jurisdiction of the court which is being transferred is not to be looked. Therefore, the reliance placed on the above decision by the learned counsel for the 1 st respondent-husband is without any basis.

11. The appellant-wife and the 1st respondent-husband, as pointed out above, have filed altogether four different cases before the Family Court, Aluva and the Family Court, Kottayam at Ettumanoor. The appellant-wife is, admittedly, residing at her parental house, which is near to the Family Court, Ettumanoor. It is also pointed out that the appellant-wife is unemployed. This has not been controverted in the counter affidavit filed on behalf of the 1st respondent-husband. Apart from this, in the interest of justice, all four cases ought to be considered together and disposed of.

12. The Apex Court in N.C.V.Aishwarya v. A.S. Sharavana Karthik Sha [AIR 2022 SC 4318], has held that, generally, it is the wife's convenience which must be looked into, while considering a transfer application. Further, when two or more 8 Tr. Appeal (C) Nos.6 and 8 of 2024 proceedings are admittedly pending before different Courts, involving the same factual and legal aspects, all these cases have to be tried together, so as to avoid different Courts coming to different views.

13. In such circumstances, we are of the opinion that, in the interest of justice, it would be better to transfer the cases pending at Family Court, Aluva to the Family Court, Kottayam at Ettumanoor as prayed for by the wife.

In such circumstances, we allow these appeals, setting aside the common order dated 09.04.2024, in Tr.P(C)Nos.153 of 2024 and 154 of 2024 of the learned Single Judge of this Court, and order the transfer of G.O.P.No.1201 of 2023 and O.P.No.1133 of 2023 pending before the Family Court, Aluva to the Family Court, Kottayam at Ettumanoor, to be tried along with O.P.(G&W)No.205 of 2024 and M.C.No.22 of 2024 filed by the appellant-wife.

Ordered accordingly.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE ln

Unlock Advanced Research with PRISMAI

Kerala High Court