Haseena S vs Shameer Khan A

C.S Dias, J

As the transfer petitions are between the husband and wife and the father of the husband, they are being disposed of by this common order.

Tr.P(C) 295/2021 is filed by the husband and father, seeking to transfer OP 1432/2020 filed by the wife, from the Family Court, Kollam to the Family Court, Nedumangad. Tr.P(C)Nos.86 and 99 of 2021 are filed by the wife, seeking to transfer of OP Nos.1282 and 1295 of 2020, filed by the husband, from the Family Court, Nedumangad to the Family Court, Kollam. The parties are, for the sake of convenience, referred to as per their status and the pleadings in Tr.P(C) No.295/2021, as it is the most comprehensive transfer petition.

The petitioners’ case in Tr.P (C)295/2021 is that, the respondent is the wife of the first petitioner. The second petitioner is the father of the first petitioner. The first petitioner and the respondent have four daughters born in their wedlock. Due to the estrangement in marital relationship, the respondent has filed OP 1432/2020 (Annexure 1) against the petitioners, before the Family Court, Kollam, seeking a decree for return of money and gold ornaments. The first petitioner has filed OP Nos.1282 and 1295 of 2020, (Annexures 2 and 3), against the respondent, before the Family Court, Nedumangad, seeking an order for the permanent custody of the children and a decree for restitution of conjugal rights. The distance between Nedumangad and Kollam is 67 kms. As the first petitioner has to discharge his duties as an Imam and his father is old and infirm, it would be convenient if Annexures 2 and 3 are transferred from the Family Court, Kollam to the Family Court, Nedumangad.

The respondent has filed Tr.P(C)Nos.86 and 99 of 2021, seeking to transfer Annexures 2 and 3 to the Family Court, Kollam. It is her case that she and four daughters are residing in her parental home at Paravoor. It would be extremely difficult for her to travel all the way from Paravoor to Nedumangad and contest Annexure 1. Moreover, she and the children are in vagrancy. There is no person to chaperone them from Paravoor to Nedumangad. Hence, considering the comparative hardship, preference may be given to the respondent. Hence, the transfer petitions may be allowed.

Heard; Sri.N.Anand, the learned counsel appearing for the petitioners in Tr.P(C)No.295/2021 and Sri.M.R Sasith Panicker, the learned counsel appearing for the respondent in Tr.P(C)No.295/2021.

The law with respect to transfer of proceedings, particularly 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 [2002 KHC 1889], Mona Aresh Goel V. Aresh Satya Goel [2000 KHC 1835], Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap [2016 KHC 6489] and Santhini V. Vijaya Venkatesh [2017 (5) KHC 48]. The Hon’ble Supreme Court has held that it is the convenience of the woman and children that has to be looked into, while ordering the transfer of a case from one Court to another.

Going by the pleadings and materials on record, it is undisputed that the first petitioner and respondent have four children born in their wedlock, who are aged 11,9, 7 and 5 years, respectively. They are in the permanent custody of the respondent. The first petitioner is aged only 37 years. He is residing within the distance of 67 kms from the Family Court, Kollam. On a consideration of the comparative hardship of the first petitioner and the respondent, I am of the firm view that comparative hardship of the respondent and children has to be given due preference. Moreover, if all the cases are consolidated and jointly tried before the same Court, it would save precious judicial time and avoid conflict of decisions. Therefore, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure and allow Tr.P(C)Nos.86 and 99 of 2021 by ordering the transfer of Annexures 2 and 3. Consequently, I am not inclined to transfer Annexure 1.

In the result, the following orders are passed:

(i) Tr.P(C) No.295/2021 is dismissed.

(ii) Tr.P(C) No.86/2021 is allowed by ordering the transfer of O.P No.1282/2020 from the Family Court, Nedumangad to the Family Court, Kollam.

(iii) Tr.P (C) No.99/2021 is allowed by ordering the transfer of O.P No.1295/2021 from the Family Court, Nedumangad to the Family Court, Kollam.

(iv) The parties would be at liberty to move the Family Court, Kollam, and seek for consolidation and joint trial of all the cases between them.

(v) The petitioners would be at liberty to seek for dispensation of the personal appearance of the second petitioner.

(vi) The Registry shall forward a copy of this judgment to the Family Court, Nedumangad, with instructions to forward the records in Annexures 2 and 3 to the Family Court, Kollam.

(vii) The parties are directed to mark their appearance either in person or through their Counsel before the Family Court, Kollam on 1.8.2022.

(viii)If the first petitioner files any application seeking interim custody of the children, the same shall be considered, as expeditiously as possible.

(ix) The Family Court, Kollam, is directed to call Annexures 2 and 3 along with OP 1432/2020 on 1.8.2022.