Raji Mani vs Shaju Lonappan

This transfer petition was filed by the petitioner-wife who is the respondent in O.P.No.90/2019 on the file of Family Court, Thrissur. The original petition was filed by husband/respondent for dissolution of marriage. The petitioner's request in this petition is for transfer of proceedings from Family Court, Thrissur to Family Court, Thiruvananthapuram.

I heard the learned counsel for the petitioner as well as the respondent.

Petitioner's case is that she is residing within the jurisdictional limits of Family Court, Thiruvananthapuram along with her parents and minor child and she is not in a position to undertake journey for long distance of 300 kms from her residence to Family Court, Thrissur. Until she shifted to Thiruvananthapuram, she was residing in Thrissur. She proceeds to state that when she had to face acts of domestic violence from respondent, she was forced to file criminal complaint against him before police for offence under Section 498A and instituted proceedings before the Judicial First Class Magistrate Court-III, Thrissur under Section 23(2) of Protection of Women from Domestic Violence Act. Under the said circumstances, according to her, she was forced to move out from her matrimonial home along with her child to her parental home at Thiruvananthapuram. While living with her parents, she happened to file Annexure-A2 petition i.e., Tr.P.(C) No.14/2020, for transfer of the instant original petition, which was later withdrawn with liberty to file appropriate application afresh in the due course of time.

The respondent-husband filed counter wherein he seriously opposed transfer contending that this petition is only a ruse for harassing him for no legitimate reasons whatsoever. It is pointed out that continuance of legal proceedings before Family Court, Thrissur causes no inconvenience to the petitioner as is well evident from her own conduct of withdrawing Tr.P.(C) No.14/2020 filed before this Court. Besides O.P.No.90/2019, the respondent-husband had instituted O.P.(Div) No.1100/2017 for dissolution of marriage and G.O.P.No.1202/2017 for cutody of the minor child. The Family court, Thrissur passed orders in O.P.No.90/2019 requiring the petitioner herein to produce the child before that court. The interim order dated 13.11.2019 passed on I.A.No.1955/2019 shows that the petitioner was directed to produce the child on every 2nd and 4th Sundays between 11 am to 1.30 pm at the premises of the Family Court, Thrissur. When the petitioner committed breach of the order, the court below passed a subsequent order imposing fine of Rs.100/- on her under Section 45 of the Guardian and Wards Act. It was further cautioned by the order that she would be liable to be visited with more penal action, if she continued to refuse to comply with the directions of the court. The contention of the respondent is that in order to circumvent the aforesaid order and stall the proceedings, the instant transfer petition was filed.

The contention that the petitioner is residing along with her parents within the jurisdictional limits of Family Court, Thiruvananthapuram appears to be convincing. There is no reason to reject thepetitioner's case is that she lodged proceedings under domestic violence act before Judicial First Class Magistrate Court-III, Thrissur and later joined her parents in Thiruvananthapuram. It is true that she withdrew Tr.P.(C) No.14/2020 while she was living in Thiruvananthapuram.Though the reason for withdrawl is not disclosed, it does not mean that there is no change of circumstances at all or she is disentitled to lodge a fresh transfer petition. Since this Court in order dated 14.02.2020 granted permission to the petitioner, she is at liberty to approach for transfer as and when situation warranted.

Having regard to the long distance covering her place of residence at Thiruvananthapuram and the Family Court, Thrissur where the proceedings are pending, the request made by the petitioner for transfer seems to be just and reasonable and she is therefore entitled to get an order of transfer as sought for. The law laid down by the Apex Court is to the effect that the convenience of the wife shall be preferred when request made for transfer of proceedings pending before Family court is at her instance.

It may appear at the first blush that the petitioner is adopting dilatory tatics for delaying production of the child even defying the order of the Family Court, Thrissur. But her contention that she was disabled from taking the child all the way from Thiruvananthapuram to Thrissur when lockdown due to Covid-19 pandemic was in force during the relevant period cannot be overlooked. The learned counsel for the petitioner points out that during the course of this proceedings, the petitioner produced the child before the mediation centre attached to thisCourt pursuant to an order passed by this Court on 23.02.2021.

I am satisfied that the prosecution of O.P.No.90/2019 before the Family Court, Thrissur will place her and child in great hardship having regard to the distance between her place of residence in Thiruvananthapuram and the court. Her request for transfer for transfer is lawful and reasonable. At the same time, the order passed by the Family Court, Thrissur directing production of child on every 2nd and 4th Sundays between 11 am to 1.30 pm. should also be implemented. The petitioner cannot flout the orders passed by the Family Court, Thrissur and defeat the right of the respondent-husband to interact with the minor child on the stipulated days.

Since I am inclined to order transfer of the proceedings from Family Court, Thrissur to Family Court, Thiruvananthapuram, the petitioner shall be bound to produce the child at the premises of Family Court, Thiruvananthapuram on the date and time as directed by the Family Court, Thrissur as per order dated 13.11.2019.

In the result, this transfer petition (Civil) is allowed. O.P.No.90/2019 pending on the files of the Family Court, Thrissur will stand withdrawn and transferred to the Family Court, Thiruvananthapuram. The parties shall appear before the Family Court, Thiruvananthapuram on 09.04.2021. It is directed that the Family Court, Thrissur shall transmit all the records in the aforesaid O.P forthwith. It is made clear that the order dated 13.11.2019 passed by the Family Court, Thrissur shall be observed by the petitioner subject to the modification made as to the venue of production of the child.