Kerala High Court
Sabitha K.V vs Anil.S on 11 August, 2021
Author: V.G.Arun
Bench: V.G.Arun
TrPC.332/19 &
connected cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
TR.P(C) NO. 332 OF 2019
AGAINST THE ORDER/JUDGMENT IN OP 25/2019 OF FAMILY
COURT,THRISSUR, THRISSUR
PETITIONER/S:
SABITHA K.V.,
AGED 44 YEARS
D/O.GANGADARAN NAIR, KOLOTHU VEETTIL, NILAMBUR
VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-
679329.
BY ADVS.
P.SAMSUDIN
SRI.JITHIN LUKOSE
RESPONDENT/S:
ANIL.S,
AGED 47 YEARS
S/O.SANKARAN NAIR, PUZHAVATH KARAYIL HOUSE,
CHANGANASSERI P.O., KOTTAYAM DISTRICT, PIN- 686101.
BY ADVS.
SRI.C.R.SYAMKUMAR
SRI.SOORAJ T.ELENJICKAL
SMT.HELEN P.A.
ARUN ROY
SRI.SHAHIR SHOWKATH ALI
THIS TRANSFER PETITION (C) HAVING COME UP FOR ADMISSION
ON 19.7.2021, ALONG WITH Tr.P(C).293/2020 Tr.P(Crl).33/2020,
THE COURT ON 11.08.2021 DELIVERED THE FOLLOWING:
TrPC.332/19 &
connected cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
TR.P(C) NO. 293 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 309/2019 OF FAMILY COURT,
MALAPPURAM,
PETITIONER/S:
S.ANIL
AGED 49 YEARS
S/O.SANKARAN NAIR, ADVOCATE PUZHAVATH KARA, HOUSE,
CHANGANASSERY.P.O., KOTTAYAM-686101.
BY ADVS.
C.R.SYAMKUMAR
SRI.SOORAJ T.ELENJICKAL
SRI.P.A.MOHAMMED SHAH
SRI.K.ARJUN VENUGOPAL
SHRI.ASWIN KUMAR M J
SMT.HELEN P.A.
RESPONDENT/S:
1 K.V.SABITHA,
D/O.LATE GANGADHARAN NAIR, AGED 46 YEARS, KOLOTH
HOUSE, NILAMBUR.P.O., MALAPPURAM, NOW PERMANENTLY
AT C.S.ACADEMY SCHOOL, VALLIPURATHAN.P.O.,
VALLIPURATHANPALAYAM VILLAGE, ERODE TALUK, ERODE
DISTRICT, TAMILANDU-638112.
2 GAUTHAM
AGED 20 YEARS
S/O. ANIL, KOLOTH HOUSE, NILAMBUR.P.O., MALAPPURAM,
NOW PERMANENTLY AT C/O. SABITHA, C.S.ACADEMY
SCHOOL, VALLIPURATHAN.P.O., VALLIPURATHANPALAYAM
VILLAGE, ERODE TALUK, ERODE DISTRICT, TAMILANDU-
638112.
3 NIRANJANA (MINOR)
TrPC.332/19 &
connected cases 3
AGED 13 YEARS
D/O. ANIL, KOLOTH HOUSE, NILAMBUR.P.O., MALAPPURAM,
NOW PERMANENTLY AT C/O. SABITHA, C.S.ACADEMY
SCHOOL, VALLIPURATHAN.P.O., VALLIPURATHANPALAYAM
VILLAGE, ERODE TALUK, ERODE DISTRICT, TAMILANDU-
638112, REPRESENTED BY HER MOTHER K.V. SABITHA.
BY ADVS.
SRI.P.SAMSUDIN
SRI.M.ANUROOP
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.7.2021, ALONG WITH Tr.P(C).332/2019 AND
CONNECTED CASES, THE COURT ON 11.08.2021 DELIVERED THE
FOLLOWING:
TrPC.332/19 &
connected cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
TR.P(CRL.) NO. 33 OF 2020
AGAINST THE ORDER/JUDGMENT IN MC 153/2019 OF FAMILY COURT,
MALAPPURAM, MALAPPURAM
PETITIONER/S:
S. ANIL
AGED 49 YEARS
S/O. SANKARAN NAIR, ADVOCATE, GOPI SADANAM,
PUZHAVATH KARA, CHANGANASSERY P. O., KOTTAYAM - 686
101.
BY ADVS.
C.R.SYAMKUMAR
SOORAJ T.ELENJICKAL
P.A.MOHAMMED SHAH
K.ARJUN VENUGOPAL
ASWIN KUMAR M J
HELEN P.A.
RESPONDENT/S:
1 K. V. SABITHA
AGED 46 YEARS
D/O. LATE GANGADHARAN NAIR, KOLOTH HOUSE, NILAMBUR
P. O., MALAPPURAM, NOW PERMANENTLY AT C. S. ACADEMY
SCHOOL, VALLIPURATHAN P. O., VALLIPURATHANPALAYAM
VILLAGE, ERODE TALUK, ERODE DISTRICT, TAMILNADU -
638112.
2 NIRANJANA (MINOR)
AGED 14 YEARS
D/O. ANIL, KOLOTH HOUSE, NILAMBUR P. O.,
MALAPPURAM, NOW PERMANENTLY AT C/O. K. V. SABITHA,
C. S. ACADEMY SCHOOL, VALLIPURATHAN P. O.,
VALLIPURATHANPALAYAM VILLAGE, ERODE TALUK, ERODE
DISTRICT, TAMILNADU - 638112., REPRESENTED BY HER
TrPC.332/19 &
connected cases 5
MOTHER K. V. SABITHA.
BY ADVS.
SRI.P.SAMSUDIN
SRI.M.ANUROOP
THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 19.7.2021, ALONG WITH Tr.P(C).332/2019 AND
CONNECTED CASES, THE COURT ON 11.08.2021 DELIVERED THE
FOLLOWING:
TrPC.332/19 &
connected cases 6
V.G.ARUN, J.
-----------------------------------------------
TrP(C)No.332 of 2019, TrP(C).293 of 2020 and TrP(Crl).33 of 2020
-----------------------------------------------
Dated this the 11th day of August, 2021
ORDER
The spouses are at loggerheads and have resorted to legal remedies. The wife, who is the petitioner in Tr.P(C) No.332 of 2019, seeks transfer of O.P.No.25 of 2019 filed by the husband before the Family Court, Thrissur to the Family Court, Malappuram. The husband has filed Tr.P(Crl) No.33 of 2020 and TrP(C).No.293 of 2020, seeking transfer of M.C.No.153 of 2019 and O.P.No.309 of 2019 filed by the wife, from the Family Court, Malappuram to the Family Court, Thrissur. O.P.No.25 of 2019 is filed by the husband seeking divorce, M.C.No.153 of 2019 by the wife, seeking maintenance for the minor second child born in the wedlock and O.P.No.309 of 2019, claiming past maintenance for the elder child.
2. The wife seeks transfer pointing out the inconvenience faced by her, by being compelled to conduct cases before two Family Courts and the difficulty in commuting from Malappuram to Thrissur. The husband seeks transfer on the premise that the Family Court, Malappuram is not having jurisdiction to try the cases TrPC.332/19 & connected cases 7 filed by the wife, as no part of the cause of action has arisen within the jurisdiction of the said court. According to the husband, the wife and children are permanently residing at Erode, where she is employed as a teacher. Hence, as far as the wife is concerned, she will not be put to any inconvenience by her cases being transferred to the Family Court, Thrissur.
3. Sri.C.R.Syamkumar, learned Counsel appearing for the husband submitted that the wife is residing at Erode permanently and her residential address shown in the cases filed by her before the Family Court, Malappuram and in the transfer petitions are not correct. That, the Nilambur address shown by her is that of a relative. Hence, the Family Court, Malappuram has no jurisdiction to try the cases filed by the wife. It is pointed out that the husband has filed his original petition before the Family Court, Thrissur since the marriage was conducted at the Sreekrishna Temple, Guruvayur. If the husband's intention was to cause difficulties to the wife, he could have filed the original petition before the Family Court, Ettumanoor, since the spouses had last resided together at Changanassery.
4. Sri.P.Samsudin, learned Counsel appearing for the wife countered the allegation that the address of the wife shown in the TrPC.332/19 & connected cases 8 cases filed by her is incorrect and she has permanently shifted her residence from Nilambur. It is admitted that the wife is no longer residing at her family house in Nilambur and is temporarily residing at Erode, in connection with her employment. It is asserted that the wife's mother and sister are residing in Nilambur as evidenced by Annexures R1(a) to R1(d) and therefore, she has filed the cases before the Family Court, Malappuram. It is contended that territorial jurisdiction is not a parameter for transfer under Section 24 CPC and the relevant consideration is the competence of the transferee court. The proposition laid down in the decisions of the Supreme Court that in transfer cases arising out of matrimonial disputes, convenience of the wife should be preferred over that of the husband is relied upon.
5. The husband's original petition is for a decree of dissolution of marriage under Section 13 and 13(1b) of the Hindu Marriage Act. As per Section 19 of the Hindu Marriage Act, petitions under the Act can be presented to the District Court within the local limits of whose ordinary original civil jurisdiction; (i) the marriage was solemnised or (ii) the respondent, at the time of presentation of the petition, resides or (iii) the parties to the marriage last resided together. Here, the marriage was solemnised at Guruvayoor and TrPC.332/19 & connected cases 9 the parties had last resided together at Changanassery. The wife has no case that she was residing at Nilambur, when the original petition was presented by the husband. Hence, the original petition had to be filed either before the Family Court at Thrissur or Kottayam. It is true that the Honourable Supreme Court has in a plethora of decisions held that in transfer petitions arising out of matrimonial disputes, convenience of the wife should be preferred over that of the husband. But, in Anindhita Das v. Srijit Das [(2006)9 SCC 197], the Apex Court took note of the fact that leniency shown by courts are being misused by the women and hence, each transfer case should be decided on merits. In the light of the precedents, the question to be considered is whether the original petition is liable to be transferred to suit the convenience of the wife. The answer to the question is available from the Division Bench decision in Divya J Nair v. S.K.Sreekanth [2018 (4) KHC 520] wherein it has been held as under:
"21. ....Convenience of a party will not confer jurisdiction on a Court. Considerations of convenience would be relevant only when more than one Court is having the jurisdiction to try the case."
6. Even though competence of the transferee court is not dependent on its jurisdiction alone, transfer of a case from the TrPC.332/19 & connected cases 10 jurisdictional court to a court without jurisdiction cannot be made to suit the convenience of the wife. For the aforementioned reason, the transfer petition filed by the wife is liable to be dismissed.
7. The husband is seeking transfer of the cases filed by the wife contending that the Family Court, Malappuram lacks jurisdiction. As far as the maintenance case is concerned, it is pertinent to note that as per Section 126 Cr.P.C, proceedings under Section 125 can be taken against any person in any district (a) where he is residing; or (b) where he or his wife resides; or (c) where he last resided with his wife. Interpreting the provision, the Honourable Supreme Court in Darsan Kumari v. Surinder Kumar [1995 Suppl (4) SCC 137] has held that the section does not require permanent residence at a particular place. Even a temporary residence, so long as it is not casual, is sufficient to confer jurisdiction on the Magistrate. It is the specific case of the wife that her mother and sister are residing at Nilambur and she resides with them whenever she comes down for contesting the case. Indisputably , the wife's parental house was at Nilambur and that house being no longer in existence, she has opted to stay with her mother whenever she is in Nilambur. The wife has retained her Nilambur address in all identification documents. Her residence at TrPC.332/19 & connected cases 11 Erode is only temporary. Therefore, for the reason that the wife's family house at Nilambur is not in existence now, her residence at Nilambur cannot be termed as casual. As far as the original petition claiming past maintenance for the minor child is concerned, it cannot be held that no part of the cause of action had arisen at Nilambur, since the child was at Nilambur before shifting to Erode. Therefore, the contention that, as regards the maintenance case and the original petition, the Family Court, Malappuram has no jurisdiction is liable to be rejected. In any event, the Family Court at Thrissur does not have the jurisdiction to try those cases. Hence, the transfer petitions filed by the husband are also liable to be dismissed.
In the result, TrP(C)No.332 of 2019, TrP(C).293 of 2020 and TrP(Crl).33 of 2020 are dismissed.
Sd/-
V.G.ARUN, JUDGE vgs TrPC.332/19 & connected cases 12 APPENDIX OF TR.P(C) 293/2020 PETITIONER ANNEXURE ANNEXURE A1 TRUE COPY OF O.P.309/2019 OF THE FAMILY COURT, MALAPPURAM.
ANNEXURE A2 TRUE COPY OF O.P.25/2019 OF THE FAMILY COURT, THRISSUR.
ANNEXURE A3 TRUE COPY OF M.C.153/2019 OF THE FAMILY COURT, MALAPPURAM.
ANNEXURE A4 PHOTO COPY OF RETURNED COVER ISSUED TO THE 1ST RESPONDENT.
ANNEXURE A5 PHOTOCOPY OF THE IDENTITY CARD OF THE 1ST RESPONDENT.
TrPC.332/19 & connected cases 13 APPENDIX OF TR.P(CRL.) 33/2020 PETITIONER ANNEXURE ANNEXURE A1 TRUE COPY OF M.C.153/2019 OF THE FAMILY COURT, MALAPPURAM.
ANNEXURE A2 TRUE COPY OF O.P.25/2019 OF THE FAMILY COURT, THRISSUR.
ANNEXURE A3 TRUE COPY OF O.P.309/2019 OF THE FAMILY COURT, MALAPPURAM.
ANNEXURE A4 PHOTOCOPY OF THE RETURNED COVER ISSUED TO THE 1ST RESPONDENT.
ANNEXURE A5 PHOTOCOPY OF THE IDENTITY CARD OF THE 1ST RESPONDENT.
TrPC.332/19 &
connected cases 14
APPENDIX OF TR.P(C) 332/2019
PETITIONER ANNEXURE
ANNEXURE A1 TRUE COPY OF THE MEMORANDUM IN
O.P.NO.25/2019 ON THE FILES OF THE FAMILY
COURT, THRISSUR.
ANNEXURE A2 TRUE COPY OF THE MEMORANDUM IN
O.P.NO.309/2019 ON THE FILES OF FAMILY
COURT, MALAPPURAM.
ANNEXURE A3 TRUE COPY OF THE MEMORANDUM IN MC
153/2019 ON THE FILES OF FAMILY COURT,
MALAPPURAM.