Afeefa vs Amjath Rajah

Viju Abraham , J.

Above transfer petition is filed seeking transfer of OP (G & W) No.231 of 2022, OP No. 220 of 2022 and OP No.729 of 2022 pending before the Family Court, Malappuram to Family Court, Irinjalakkuda.

Petitioner is the wife of the 1st respondent who got married on 30.10.2011 and three children were born in the wedlock. It is contended that the petitioner was constrained to leave her marital house due to physical and mental torture by respondents 1 to 4, and the respondents did not permit the children to go with the petitioner. Thereupon petitioner filed OP (G & W) No.231 of 2022 before the Family Court at Malappuram for the custody of minor children. Thereupon OP No.220 of 2022 was filed before the Family Court, Malappuram by the 1st respondent seeking restitution of conjugal rights. Thereafter 1st respondent also filed OP No.729 of 2022 before the Family Court, Malappuram seeking recovery of money. It is contended that petitioner has also filed two other OPs before the Family Court, Irinjalakkuda for dissolution of marriage and for recovery of gold and money misappropriated by the respondents as OP No.1216 of 2022 and OP No. 765 of 2023.

Petitioner submits that she is not in a position to travel long distance from Kodungallur to Malappuram to attend the Court proceedings. It is contended that there are five cases pending between the parties out of which three cases are pending before the Family Court, Malappuram and remaining two are pending before the Family Court, Irinjalakkuda. Petitioner submits that the convenience of the wife is to be taken into consideration while considering a transfer petition involving matrimonial disputes. Petitioner submits that she is living with her aged parents and is finding it difficult to contest the case pending before the Family Court, Malappuram. Petitioner submits that she apprehends threat to life from the 1st respondent if the case is continued in the Family Court, Malappuram.

The application was seriously opposed by the 1st respondent by filing a detailed counter affidavit, wherein it is contended that, in the marriage three children were born and the custody of all the three children is with him. It is contended that the petitioner was torturing and harassing the children for silly matters and it was later understood that she was medicating for her mental illness before marriage. It is also alleged that the petitioner has some illicit relationship with one of her colleague at her workplace, and she eloped with him on 01.02.2022, taking all the gold ornaments and other valuables leaving the children behind, leaving a letter stating that she was going to live with the said person. Though an application seeking custody of the children was filed, after interacting with the children the Family Court granted custody to the 1st respondent and only allowed the petitioner to have visitorial on 1st and 3rd Saturday at the Court Complex at Malappuram Family Court. The children are studying at Malappuram and if the case is transferred to Irinjalakkuda, it would be against the welfare of the children and would cause serious hardship to the children, and that Family Court, Malappuram is having jurisdiction over the disputes. The further contention of the petitioner that she is finding it difficult to attend the Court proceedings at Malappuram is also without any basis as the actual residential address of her father is Malappuram. It is also contended that the 1st respondent and his parents are having serious health issues, and if the case is transferred as requested they will be put to serious prejudice. It is contended that the welfare of the children is paramount and it is the convenience of the children that is to be taken into consideration while transferring a petition seeking custody of the children.

The  1st   respondent  relying  on  the  judgment  in  Biny Kuriakose  v.  Joseph  Sebastian  [Tr.P(C)  No.468  of  2021] submitted that, convenience of preference and weightage while Relying on the judgment of the the children has to be given considering a transfer petition. Apex Court in Bhairu Ram v. Central Bureau of Investigation [(2010) 7 SCC 799], 1st respondent would contend that mere inconvenience cannot justify a transfer unless it results in a failure of justice, and it is contended that the Apex Court in Anindita Das v. Srijit Das [(2006) 9 SCC 197] has held that the petition for transfer should be considered on their merits and not be granted leniently.

I have considered the rival contentions on both sides.

Admittedly five proceedings are pending between the parties, three of which are pending before the Family Court, Malappuram. When I consider OP (G & W) No.231 of 2022 seeking custody of the minor child which is pending before the Family Court, Malappuram, I am of the view that convenience of the children to be taken into consideration while granting a transfer. The learned Counsel for the respondents handed over a copy of the order in Interlocutory Application No. 2 of 2022 in OP No. 231 of 2022 of the Family Court, Malappuram, whereby the Court after interacting with the children granted custody of the children to the 1st respondent and visitation right was granted to the petitioner on every 1st and 3rd Saturday at the Court premises. It is stated that the children are now studying at a school in Malappuram. Taking into consideration the above said facts and circumstances, I am not inclined to transfer OP (G & W) No.231 of 2022 pending before the Family Court, Malappuram. Further it is to be noted that the parents of the 1st respondent are also made parties herein, who are aged 66 and 62 respectively. So if the proceedings are transferred from Malappuram to Irinjalakkuda as requested in the transfer petition, I am of the opinion that the same will cause inconvenience to respondents 2 and 3 who are aged and ailing.

In view of the above facts and circumstances, I find no reason to allow the requests made in the transfer petition, and the same is accordingly dismissed. But I make it clear that both sides will be free to request the Family Court, Malappuram to permit them to appear on all formal postings through video conferencing if such facility is available in the said Court, and if such a request is made, the same shall be considered by the Family Court in accordance with law.