Kerala High Court
Sumirasheed vs Sajinmuhammed on 19 November, 2020
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA,
1942
Tr.P(C).No.343 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 1557/2019 OF FAMILY
COURT, ATTINGAL
PETITIONER/S:
1 SUMIRASHEED
AGED 30 YEARS
D/O. ABDUL RASHEED, PULLAMPALLIL HOUSE,
OTTATHENGIL, PUNNAMKULAM, K.S.PURAM P.O.,
KARUNAGAPPALLY, KOLLAM
2 ABDUL RASHEED
AGED 55 YEARS
PULLAMPALLIL HOUSE, OTTATHENGIL, PUNNAMKULAM,
K.S.PURAM P.O., KARUNAGAPPALLY, KOLLAM
3 RASHEEDA
AGED 45 YEARS
PULLAMPALLIL HOUSE, OTTATHENGIL, PUNNAMKULAM,
K.S.PURAM P.O., KARUNAGAPPALLY, KOLLAM
BY ADV. SRI.M.R.SASITH
RESPONDENT/S:
SAJINMUHAMMED
S/O. MUHAMMED SALI, T.K.HOUSE, PALLIMUKKU,
OORUPOIKA P.O., EDAKKODU VILLAGE,
CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM,PIN-
695 304
R1 BY ADV. SRI.SHAJIN S.HAMEED
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.11.2020, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Tr.P(C).No.343 OF 2020
..2..
ORDER
Dated this the 19th day of November, 2020 This transfer petition is filed under Section 24 of the Code of Civil Procedure, seeking to transfer O.P.No.1557 of 2019 (Annexure - A1) from the Family Court, Attingal to the Family Court, Chavara.
2. The case of the petitioners, in brief, is that, the 1st petitioner is the estranged wife of the respondent. The petitioners 2 and 3 are the parents of the 1 st petitioner. The respondent has filed Annexure - A1 before the Family Court, Attingal, seeking a decree for return of gold ornaments or its value. The petitioner is residing at K.S.Puram, which is hardly 7kms from the Family Court, Chavara. The petitioner has filed M.C.No.105 of 2020 before Family Court, Chavara, against the respondent, under Section 125 of the Code of Criminal Procedure, seeking an order of maintenance. The distance from the residence of the petitioners to the Family Court, Attingal, Tr.P(C).No.343 OF 2020 ..3..
is 65kms on one side. It is the convenience of the 1 st petitioner and her parents that has to be looked into while ordering transfer of the case. The malafide intention of the respondent in filing Annexure-A1 proceedings before the Family Court at Attingal is only to harass the petitioners. Hence the transfer petition may be allowed.
3. The petitioners have relied on the decisions of the Hon'ble Supreme Court in order to fortify their contention regarding the convenience of the parties.
4. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent.
5. The law in respect of transfer of proceedings, particularly in matrimonial disputes, is no longer res- integra, in view of the categoric declaration of law by the Hon'ble Supreme Court in Sumitha Sing V. Kumar Sanjay and another [(2001)10 SCC 41)], Mona Aresh Tr.P(C).No.343 OF 2020 ..4..
Goel V. Aresh Satya Goel [(2000) 9 SCC 255], Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap [AIR 2016 SC 3584], Santhini V. Vijaya Venkatesh [2017 (4) KLT 415 (SC)]. The Hon'ble Supreme Court has held that it is the convenience of the woman and children that has to be given due preference, while ordering the transfer of a case from one Court to another.
6. It is on record that the 1st petitioner has filed M.C.No.105 of 2020 before the Family Court, Chavara. The respondent on the other hand has filed Annexure A1 against the petitioners, who are his wife and parents of the 1st petitioner. Both the 1st petitioner and the 3rd petitioner are women. It is also not disputed that the distance between Chavara and Attingal is more than 65kms on one side. As the proceedings being one for recovery of money, necessarily all the petitioners would have to travel all the way from Chavara to Attingal to contest Annexure - A1 proceedings, which would cause Tr.P(C).No.343 OF 2020 ..5..
severe inconvenience and hardship to them. In such matters, it is the comparative hardship of the petitioners that has to given due weightage when compared to the so called hardship of the respondent. Morever, if Annexure
-A1 proceedings is transferred from the Family Court, Attingal to the Family Court, Chavara, it can be consolidated and jointly tried with M.C.No.105 of 2020, which would avoid conflict of decisions and save judicial time.
7. In the totality of the facts and circumstances of the case, considering that the petitioners 1 and 3 are women and the law laid down by the Hon'ble Supreme Court in the afore cited decisions, in exercise of the discretionary powers of this Court under Section 24 of the Code of Civil Procedure, I allow the transfer petition by ordering the transfer of O.P.No.1557 of 2019 from the Family Court, Attingal to the Family Court, Chavara. The parties are at liberty to move the Family Court, Chavara, Tr.P(C).No.343 OF 2020 ..6..
to seek for consolidation and joint trial of both the proceedings. The Registry shall forward a copy of this judgment to the Family Court, Attingal with instructions to forthwith transmit the records in O.P.No.1557 of 2019 to the Family Court, Chavara. The parties are directed to appear before the Family Court, Chavara, either in person or through counsel, on 12.01.2021.
Sd/-
C.S.DIAS
kkj JUDGE
Tr.P(C).No.343 OF 2020
..7..
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE-A1 TRUE COPY OF THE OP O.1557/2019 FILED
BY RESPONDENT BEFORE THE FAMILY COURT, ATTINGAL