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2024 DIGILAW 71 (KER)

Mubassira, D/o. Muhammed Ali Musliyar v. Abdul Nishad, S/o. Kalanthankutty

2024-01-17

C.JAYACHANDRAN

body2024
ORDER : The petitioner herein is the petitioner in O.P. (G&W) No.720/2023 pending before the Family Court, Kozhikode. She seeks the said case to be transferred to the Family Court, Manjeri, Malappuram. The reason stated for the transfer is that the petitioner, due to financial and health constraints, is not in a position to travel to Kozhikode, though the case was originally filed before the Family Court, Kozhikode. It was also pointed out that the distance from the place of residence of the respondent to the Family Court, Malappuram, is only 35 kms, whereas the distance to the Family Court, Kozhikode is 39 kms, wherefore the respondents does not stand to have any inconvenience on account of the transfer sought for. 2. Learned counsel for the petitioner invited the attention of this Court to Annexure A2 interlocutory application preferred in O.P.(G&W) No.720/2023 seeking custody of the child, wherein there is a specific pleading in paragraph no.1 to the effect that the G.O.P. preferred before the Family Court, Kozhikode is not maintainable and that the proper Court for filing such G.O.P. is the Family Court, Malappuram. For the above said reasons, the petitioner seeks transfer of the G.O.P. 3. This application was seriously opposed by the learned counsel for the respondents. The respondents submitted that the distance from the petitioner’s residence to the Family Court, Kozhikode is 38 kms, whereas the distance from her residence to the Family Court, Malappuram is 30kms, wherefore the difference of the distance to the two Courts is minimal. It was also pointed out that going by Section 9 of the Guardians and Wards Act, 1980, the jurisdiction for preferring an application under the Act is upon the Court where minor resides. There is no sufficient reason to interfere with such jurisdiction conferred by the Statute. As regards the contention in Annexure A2, learned counsel submitted that the same was made, while answering the claim made by the petitioner herein in the subject interlocutory application. 4. Having heard the learned counsel appearing on both sides, this Court is inclined to allow the instant Transfer Petition sought for. This Court notice that the petitioner herein is the wife/mother and the respondents are the husband and his two brothers. 4. Having heard the learned counsel appearing on both sides, this Court is inclined to allow the instant Transfer Petition sought for. This Court notice that the petitioner herein is the wife/mother and the respondents are the husband and his two brothers. The settled legal position with respect to the requirement to take into account the convenience of the wife would equally apply in respect to matters under the Guardians and Wards Act as well; and the same is not confined to the divorce petitions preferred under the respective personal law. It is true that Section 9 of the Act confers jurisdiction on the place where the minor is residing. However, in every proceeding, be it for declaring the guardianship of minor or for divorce, a natural jurisdiction is conferred by the special statute. If the proposition canvassed by the counsel is accepted as a reason for opposing the transfer made, no transfer applications can be allowed. Another contention raised by the learned counsel for the respondent is that the child is presently studying in a school at Kozhikode and also attending a Madrassa. This contention also is insufficient to oppose the transfer motion, since the distance from the present place of residence of the respondents to the Family Court, Malappuram, is less than the distance to the Family Court, Kozhikode. That apart, this Court is of the opinion that the presence of the minor is not required on every posting before a Family Court, which aspect will be clarified by this Court in this judgment. Finally, this Court is of the opinion that in view of the contention taken by the respondents herein in Annexure A2 objection, the transfer sought for is all the more liable to be allowed. 5. In the circumstances, this Transfer Petition is allowed, directing transfer of O.P.(G&W) No.720/2023 pending before the Family Court, Kozhikode to the Family Court, Manjeri, Malappuram. The transferor Court shall transmit the entire records to the transferee Court, forthwith. However, it is clarified the transferee Court shall not insist for the presence of the minor on every posting date. Such presence shall be insisted on those occasions, where the minor’s presence is quite essential for the progress of the proceeding.