Monisha C.S, vs Arshaknath C.P

C.S Dias, J

The transfer petition is filed under Sec.24 of the Code of Civil Procedure to transfer OP No.85/2020 (Annexure-2) from the Family Court, Kozhikode, to the Family Court, Ernakulam.

The petitioner’s case, in brief, in the memorandum of transfer petition is that, she is the wife of the respondent. The respondent has filed the above original petition, seeking a decree for restitution of conjugal rights. The petitioner is a serial artist and is residing in a rental house at Ernakulam. After her marriage with the respondent, she was residing at Kozhikode. The respondent has treated her with matrimonial cruelty. Even though efforts were made for rapprochement, the same failed. Hence, the petitioner filed OP Nos.322/2019 and 532/2019, against the respondent, before the Family Court, Kalpetta, for a decree of divorce and a decree for return of money and gold ornaments. Immediately, thereafter, the respondent filed Annexure-2. Due to the harassment of the respondent, the petitioner had to shift her residence to Ernakulam as evidenced by Annexure-3 rental agreement. She has filed MC No.33/2021 before the Judicial First Class Magistrate Court, Kakkanad, against the respondent, invoking the provisions of the Protection of Women from Domestic Violence Act. The petitioner has withdrawn OP No.322/2019 filed before the Family Court, Kalpetta and filed OP No.2717/2021 before the Family Court, Ernakulam, for a decree of divorce. As the petitioner is presently residing in Ernakulam and is only 27 years of age, it would be difficult for her to contest Annexure-2 before the Family Court, Kozhikode. Hence the transfer petition.

The respondent has filed a counter affidavit denying the allegations in the transfer petition. He has contended that Annexure-3 rental agreement is executed only for the purpose of conferring jurisdiction of the Family Court, Ernakulam. The petitioner is a serial artist and is permanently residing at Chennai. The address shown in Ernakulam is only a temporary residence. The petitioner is a native of Wayanad. She herself had filed OP Nos.322/2019 and 532/2019 before the Family Court, Kalpetta. The said cases have been dismissed. The respondent has filed Annexure-2, seeking a decree for restitution of conjugal rights. This Court in Silpa Shaji vs. Satheesh K.S [ 2022 (1) KHC 691] has held that a temporary residence is not sufficient to transfer a case from one Court to another. Hence the transfer petition may be dismissed.

Heard;  Smt.Annamma  Philip,  the  learned counsel  appearing  for  the  petitioner  and  Sri.Sunil Kumar.S, the learned counsel appearing for the respondent.

The point is whether Annexure-2 is to be trasferred.

Admittedly, Annexure-2 is filed by the respondent before the Family Court, Kozhikode, as early as on 20.1.2020. Prior to the filing of Annexure-2, the petitioner herself had filed OP Nos.322 and 532 of 2019 before the Family Court, Kalpetta, asserting that she is a resident of Wayanad district. The parties were contesting the proceedings before the Family Court at Wayanad and the Family Court at Kozhikode.

Undisputedly, the cases filed by the petitioner have been dismissed. The petitioner continued to defend Annexure-2 before the Family Court, Kozhikode.

Now in the year 2022, the petitioner has filed the transfer petition to transfer Annexure-2 to the Family Court, Ernakulam, on the ground that she is presently residing at Ernakulam.

This Court in Silpa Shaji (supra) has held that a temporary residence is not a ground for transfer.

A Division Bench of this Court in Vidhya Mundekkat v. Akhilesh Jayaram [2021 (6) KHC 506] has categorically held that there is no invariable rule that, whenever a wife seeks a transfer of proceeding alleging inconvenience, this Court is not obliged to exercise its powers under Sec.24 of the Civil Procedure Code.

Taking into account the fact that the petitioner herself had invoked the jurisdiction of the Family Court, Kalpetta, by filing OP Nos.322 and 532 of 2019 on the assertion that she was a permanent resident of Sulthan Bathery and subsequently she was also contesting Annexure-2 before the Family Court, Kozhikode, I am not inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure to transfer Annexure-2 from the Family Court, Kozhikode to the Family Court, Ernakulam, on the basis of the assertion that the petitioner is presently residing at Ernakulam. Sec.24 of the Code of Civil Procedure is not meant to be exercised on the mere asking of a party, as and when they shift their residence from one place to another. The reasons stated in the transfer petition do not satisfy me to invoke the discretionary powers of this Court. The transfer petition fails and is dismissed.