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2016 DIGILAW 1002 (KER)

Yohannan v. Preethy

2016-11-17

K.RAMAKRISHNAN

body2016
ORDER : 1. T.P.(C) 604 of 2015 was filed by the wife against the husband for transfer of OP(Divorce) 399 of 2015 and OP(G&W) 400 of 2015, both the cases are pending before Family Court Thiruvalla to Family Court Alappuzha while husband filed T.P.(C) 47 of 2016 to transfer OP145 of 2015 and OP(Divorce)198 of 2015 pending before Family Court, Alappuzha to Thiruvalla and T.P.(Criminal) 108 of 2016 pending before Family court, Alappuzha to Family Court Thiruvalla under Section 24 of Code of Criminal Procedure and Section 407 of Code of Criminal Procedure. 2. The common case of respective petitioners in these petitions was that the petitioner and respondent are husband and wife and their marriage was solemnized on 8.02.2010 from St. Thomas Marthoma Church Niranam and they were living together as husband and wife at the house of the respondent which is within the jurisdiction of Family court Alappuzha. A male child was born to them in that wedlock. They lived together as husband and wife till 20.02.2015 and thereafter their relationship strained and she had left the matrimonial home and started residing along with her parents with their child. She filed M.C.17 of 2015 before Family Court Alappuzha claiming maintenance for herself and son on 4.03.2015 and also filed O.P.145 of 2015 before Family court Alappuzha for return of gold ornaments and other reliefs and also attached the property of the husband situated within the jurisdiction of Alappuzha Family Court that was filed on 06.11.2015. Wife also filed OP (Divorce) 198 of 2015 on 31.03.2015 before Family court Alappuzha and in all these cases the respondent entered appearance through his father as power of attorney and it was posted to 06.11.2015 for evidence. It is thereafter, the husband filed O.P, (Divorce) 399 of 2015 and OP (Guardian and Wards) 400 of 2015 both before Family Court Thiruvalla with date of appearance on 29.05.2015 and both these cases were filed by the husband though power of attorney holder father. So wife filed the petition to transfer these two cases to Family Court Alappuzha to be tried along with those cases pending before that court. Earlier. Earlier a joint petition was filed to transfer both the cases but on the basis of the objection raised by the registry, this was confined to one case. Viz OP (Divorce) 399 of 2015. So wife filed the petition to transfer these two cases to Family Court Alappuzha to be tried along with those cases pending before that court. Earlier. Earlier a joint petition was filed to transfer both the cases but on the basis of the objection raised by the registry, this was confined to one case. Viz OP (Divorce) 399 of 2015. In view of the full bench decision that single petition can be filed in one court, for bringing all cases pending in court below and same party. The petitioner filed I.A. 115.0of 2016 to Transfer OP (G&W) 400 2013 also from Family Court Thiruvalla to Family Court Alappuzha. 3. The respondent and the parents alleged in their petition that the place of residence of both parties are very near to Family Court, Thiruvalla and if the case pending before Family Court Alappuzha is transferred to Family Court Thiruvalla, it will be convenient to both the parties solely pray for transfer of cases pending before Family Court Alappuzha to Family Court Thiruvalla. The respondent through power of attorney holder entered appearance in the transfer petition 604 of 2014 and filed counter contending that the place of residence of both the petitioner and respondent are very near to Family Court Thiruvalla and as far as the guardian petition is concerned, the petition can be filed before Family Court Thiruvalla only, as the child is residing within the jurisdiction of Thiruvalla court, which is only 5 kms from the place of residence of the wife and 10 kms from the residence of the husband. Alappuzha Family court is situated about 35 and 40 kms from the respective residence. The husband filed this transfer petition on the ground that if these cases are to be transferred to Family Court Thiruvalla. So both the parties filed this respective petitions to transfer the cases to the respective of their choice. 4. Heard Smt. Bindu, which is appearing for the wife and Smt. Mereena Joseph counsel appearing for the husband in ail these cases. 5. The learned counsel for the wife submitted that the cases were filed by the wife earlier and the husband entered appearance through power of attorney and filed objection and he did not make any dispute regarding the jurisdiction. Further when the cases were posted for trial, he filed these transfer petitions. 5. The learned counsel for the wife submitted that the cases were filed by the wife earlier and the husband entered appearance through power of attorney and filed objection and he did not make any dispute regarding the jurisdiction. Further when the cases were posted for trial, he filed these transfer petitions. Further other two cases were filed only later in point of time so as to harras the petitioner to conduct the cases in both the courts. She also submitted that the place of residence of the husband will have to be treated as the permanent residence for the child as he is the legal guardian. 6. On the other hand, the learned counsel for the respondent submitted that the place of residence of both the parties will have to be taken into consideration for the purpose of transferring the cases. It will be easier, if the cases are transferred to Family court Thiruvalla, which is very near to both the parties. Further the respondent is being represented by the power attorney father, who has to travel more distance to come to Alappuzha to conduct the case. 7. It is an admitted fact that these petitions were filed by the wife and husband for transfer of cases filed by each other from one family court to another. It is not in dispute that the husband is residing within the jurisdiction of the Family Court, Alappuzha and his properties are also situated within the jurisdiction of the Family Court, Alappuzha. It is in a way admitted that the wife is residing within the jurisdiction of the Family Court, Thiruvalla. Since they last resided together at the residence of the husband and the properties of the husband are situated within the jurisdiction of the Family Court, Alappuzha, she filed OP (Div).No.198/2015 for dissolution of marriage and OP. No. 145/2015 for return of gold ornaments and other monetary reliefs before the Family Court, Alappuzha. She also filed MC.No.17/2015 on the file of the Family Court, Alappuzha for maintenance for herself and the child under section 125 of the Code of Civil Procedure against the husband. It is not in dispute that all these three cases were filed before the Family Court, Alappuzha in prior point of time and the husband was represented by his power of attorney, who is none other than his father. It is not in dispute that all these three cases were filed before the Family Court, Alappuzha in prior point of time and the husband was represented by his power of attorney, who is none other than his father. It is thereafter that the husband filed OP (Div).No.399/2015 for dissolution of marriage and also OP (G&W).No.400/2015 for custody of the child, who is with the mother/wife before the Family Court, Thiruvalla. Immediately after getting notice in the above proceedings filed by the husband through the power of attorney holder father, the wife filed Tr. P.(C).No.604/2015 to transfer those two cases to the Family Court, Alappuzha to be tried along with the three cases filed by her before that court and obtained stay of further proceedings in those cases. The Registry raised an objection that one petition cannot be filed for transfer of two cases. The wife restricted the claim in Tr. P.(C).No.604/2015 in respect of OP(Div).No.399/2015 and thereafter when a Full Bench of this court has held that both can be filed by way of one petition and if one petition was omitted to be filed, then that can be filed by way of an interlocutory application in the same proceedings. The wife filedIA.No.1150/2016 to incorporate the prayer for transfer of OP (G&W).No.400/2015 from the Family Court, Thiruvalla to the Family Court, Alappuzha in this petition itself. That is also being disposed of this court along with these petitions. It is also in away admitted that the present petition for transfer was filed by the husband only in June, 2016 after he received notice in Tr. P(C).No.604/2015.It is true that by virtue of distance, the parties may be very nearer to the Family Court, Thiruvalla. But when earlier proceedings were filed before the Family Court, Alapppuzha by the wife, the respondent entered appearance through power of attorney and filed objection where he had not raised the question regarding jurisdiction of that court to entertain those cases. In fact he was participating in the proceedings. But when earlier proceedings were filed before the Family Court, Alapppuzha by the wife, the respondent entered appearance through power of attorney and filed objection where he had not raised the question regarding jurisdiction of that court to entertain those cases. In fact he was participating in the proceedings. It is averred in the petition filed by the wife that after pre trial steps, the cases were posted for evidence, it was at that time, the present petition for transfer of cases pending before the Family Court, Alappuzha was filed by the husband, that too through power of attorney as he was working abroad and he is represented by his father through out in the proceedings. It is true that as regards the custody of the child is concerned, the case will have to be filed before the Family Court having jurisdiction where the child is permanently resides. The question as to whether it is the place of permanent residence, has been considered by this court and said that normally the place of residence of the legal guardian will be considered as the place of permanent residence of the child. If that be the case, the father will be the legal guardian and mother will be holding the child at tender age for a particular period, the custody of the child will be decided taking into consideration the paramount interest of the child. Further, if any decree has been passed against the husband in a petition filed by the wife for return of gold ornaments and monetary relief, if that case is transferred to the Family Court, Thiruvalla and it was decreed from that court, then the decree will have to be transmitted to the Family Court, Alappuzha for the purpose of executing the decree as the defendant is residing within the jurisdiction of that court and also the properties that will have to be proceeded also are situated within the jurisdiction of that court. That will cause unnecessary hardship to the wife in prosecuting the case. The wife has already filed three cases and she is conducting those cases from the Family Court, Alappuzha without any difficulty as she was accustomed to the same. The husband is not personally appearing but he is appearing through the power of attorney and he can be represented by the counsel also before the courts. The wife has already filed three cases and she is conducting those cases from the Family Court, Alappuzha without any difficulty as she was accustomed to the same. The husband is not personally appearing but he is appearing through the power of attorney and he can be represented by the counsel also before the courts. Considering the fact that the cases filed by the wife were prior in point of time and it has already reached the stage of trial, this court feels that it is not necessary to transfer those cases at this stage to the Family Court, Thiruvalla as claimed by the husband in Tr. P.(C).No.47/2016 and Tr. P.(Crl). No. 108/2016. But at the same since three other cases are pending before the Family Court, Alappuzha where the husband is appearing through the Power of attorney and filed objection and that has reached the stage of trial, this court feels that the petitions filed by the husband before the Family Court, Thiruvalla namely OP.(Div). No.399/2015 and OP(G&W).No.400/2015 pending before the Family Court, Thiruvalla can be transferred to the Family Court, Alappuzha to be tried along with OP(Div).No.198/2015, OP. No. 145/2015 and MC. No. 17/2015 pending before that court. So Tr. P.(C).No.47/2016 and Tr. P.(Crl).No.108/2016 filed by the husband are hereby dismissed and Tr. P.(C).No.604/2015 filed by the wife and also IA. No, 1150/2016 in Tr. P.(C). No.604/2015 are allowed and OP(Div).No.399/2015 and OP (G&VV).No.400/2015 are withdrawn and transferred to the Family Court, Alappuzha to be tried along with OP(Div)No. 198/2015, OP.No.145/2015 and MC.No.17/2015 pending before that court. The Family Court, Thiruvalla is directed to transmit those records to the Family Court, Alappuzha immediately. Both the counsel submitted that if a date is fixed for their appearance before the transferee court, they are prepared to appear before that court on that date. So parties are directed to appear before the Family Court, Alappuzha on 15.12.2016 either personally or through counsel or authorized agent. The Family Court, Alappuzha is directed to expedite the disposal of these cases taking into consideration that the cases were filed in the year 2015 and try to expedite the disposal of the same at the earliest possible time after exploring the possibility of settlement by counselling and mediation, if required, before going for trial as provided under the Family Court Act and section 89 of the Code of Civil Procedure. Registry is directed to communicate a copy of this order to both the courts immediately.