Allowed

Mrs.Vyjayanthimala Viswambharan v. Viswambharan

Kerala HC16 Jul 2008Tr.P(C)/211/2007

Case brief

AI extract

What is this about?

The Kerala High Court held that a divorce petition pending before the Family Court, Thrissur, can be transferred to the City Civil Court, Thane, under Sections 22 and 23 of the CPC. The Court ruled that transfer was just and expedient as the petitioner was settled in Thane and contesting in Thrissur would cause undue hardship.

What did the court decide?

Divorce O.P. 284 of 2007 pending before Family Court, Thrissur transferred to Court of Civil Judge (Senior Division), Thane.

Mrs.Vyjayanthimala Viswambharan Vs Viswambharan — Matrimonial and Divorce | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930

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Tr.P(C).No. 211 of 2007() ------------------------OP(DIVORCE).284/2007 of FAMILY COURT,THRISSUR ....................

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PETITIONER : ---------------

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VYJAYANTHIMALA VISWAMBHARAN, B/17, FLAT NO.33, VIJAYA NARAGI ANNEX, GHODBUNDER ROAD, WAGHBIL, THANE-(WEST), MAHARASHTRA. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN SRI.B.K.GOPALAKRISHNAN

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RESPONDENT:

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K.V.VISWAMBHARAN, R-354, T.T.C, M.I.D.C, THANE-BELAPUR ROAD, RABALE, THANE(W)400 701 NOW RESIDING IN THE ADDRESS: ENGANDIYUR VILLAGE, CHAVAKAD TALUK, THRISSUR DIST.

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BY ADV. SRI.MILLU DANDAPANI FOR R1

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THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M. SASIDHARAN NAMBIAR, J.

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Tr.P.(C) NO. 211 OF 2007

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Dated this the 16^th day of July, 2008

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JUDGMENT

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Whether at the instance of the wife a petition for divorce pending before Family Court, Thrissur can be transferred to City Civil Court, Thane is the question to be decided.

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The marriage of the petitioner with the respondent was solemnized at Guruvayoor Sree Krishna Temple on 21.4.1974. They were living together as man and wife at Thane in Maharashtra. Respondent husband subsequently left Thane and started residing at Thrissur. Petitioner wife filed M.P.461 of 2005 before Civil Judge (Senior Division), Thane claiming restitution of conjugal rights under Section 9 of Hindu Marriage Act. Respondent appeared therein and filed Ext.P3 written statement. On the application filed by petitioner, Ext.P5 order for interim maintenance was passed in that case on 27.4.2007. Meanwhile, respondent filed O.P.(Divorce) 284 of 2007 before Family Court, Thrissur on 28.2.2007. This petition is filed to transfer that case to Thane. The petition is opposed by the respondent.

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Tr.P(C)211/07

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Learned counsel appearing for petitioner and respondent were heard.

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Learned counsel appearing for petitioner argued that divorce petition was filed by the husband after his wife sought restitution of conjugal rights and he appeared before that Court and resisted the claim. It was pointed out that a petition for divorce could have been filed before the Court of City Civil Judge at Thane and as petition for restitution of conjugal rights is pending before the Court of Civil Judge (Senior Division) at Thane, and the question to be decided in both the petitions are similar, it is advantageous to try both the petitions by the same Court. It was also contended that petitioner is now permanently settled at Thane and it is very difficult for her to travel to Thrissur and contest the case and therefore the case is to be transferred to Thane. Learned counsel appearing for respondent argued that the question to be decided in the case at Thane is different from the question to be decided at Thrissur. It was also pointed out that the respondent left Thane after disposing his assets in the year 2005 and he is now aged 65 years and it is difficult for him to travel to Bombay and contest the case. It was also argued that petitioner is having her

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Tr.P(C)211/07

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Tharavadu house within the jurisdiction of Family Court, Thrissur, where she could reside and contest the case, and if respondent is compelled to go to Bombay, he has to stay in a hotel apart from the difficulties of travel and in such circumstances the case may not be transferred to Thane. Learned counsel appearing for respondent relying on the decisions in Brijesh Kumar Gupta v. Poonam Gupta (2002 AIHC 4491) and in David v. James Arthur Edwards (AIR 1958 Kerala 82) argued that the principles laid therein do not support the case advanced by the petitioner.

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Learned counsel appearing for petitioner relied on the decision of a learned single Judge of this Court in Jency Elizabeth Peter v. Biju Thomas (2005(3) KLJ 392) and argued that the petition is maintainable.

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Section 22 of Code of Civil Procedure provides the power to transfer a suit, which may be instituted in more than one Courts. If the suit could be instituted in more than one Courts, any of the parties at the earliest possible opportunity is entitled to request for transfer of that suit from the Court where

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it is instituted to any of the other Courts, where it has jurisdiction. Section 23 deals with the procedure to be complied

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Tr.P(C)211/07

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namely where that application is to be filed. Sub-section 1 and 2 of Section 23 are not relevant as the case to be transferred to a Court not within the jurisdiction of this Court but to a Court subordinate to another High Court.

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Sub-section 3 of Section 23 reads:

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“(3). Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Courts in which the suit is brought is situate.”

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Therefore, if the petition for divorce filed before Family Court, Thrissur is the one which could be filed before Court of Civil Judge (Senior Division), Thane, then under sub section 3 of Section 23 petitioner is entitled to apply for transfer to this Court and this Court is competent to order transfer. Learned Single Judge in Jency Elizabeth Peter v. Biju Thomas’s case (supra) considered this aspect and held that sub section 3 of Section 23 enables this Court to transfer a matrimonial O.P within the jurisdiction of this Court to another Court having jurisdiction under another High Court.

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Then the only question is whether the divorce O.P.

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Tr.P(C)211/07 5

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could have been instituted before City Civil Court, Thane. The learned counsel appearing for respondent relying on Section 19 of Hindu Marriage Act argued that respondent is entitled to file an application where the marriage was solemnized and as it is instituted at Thrissur the case cannot be transferred to Thane. Section 19 of Hindu Marriage Act provides that a petition provided under the said Act could be instituted either before the Court within the local limits of whose jurisdiction the marriage was solemnized or respondent at the time of objection resides or the parties to the marriage last resided together or petitioner is residing at the time of presentation of petition. Admittedly when the petition for divorce was filed before Family Court, Thrissur, petitioner herein (respondent in that petition) was residing at Thane. In such circumstances, as provided under Section 19(ii) a petition for divorce definitely could have been instituted at Thane. Therefore sub section 3 of of Section 23 squarely applies and this Court is competent to order transfer.

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Then the only question is whether it is just and expedient to order transfer of the case from Thrissur to Thane. Though learned counsel appearing for respondent argued that respondent has closed his business and other interests at Thane

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Tr.P(C)211/07

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and so the case may not be transferred to Thane. It cannot be disputed that for the purpose of contesting the petition for restitution of conjugal rights, respondent has to travel to Thane. If that much difficulty could be faced by the respondent, contesting the divorce O.P. at Thane will not cause any additional problem. Moreover, the same inconvenience and difficulties would be faced by the petitioner, who is a lady, to travel to Thrissur. When the balancing act of inconvenience and difficulties of the parties is taken, the balance will tilt towards petitioner the woman.

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The petition is therefore allowed and O.P. 284 of 2007 pending before Family Court, Thrissur is transferred to Court of Civil Judge (Senior Division),Thane, where M.P. 461 of 2005 is pending. The Court of Civil Judge may post both the cases together so that difficulties to the parties could be avoided.

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M. SASIDHARAN NAMBIAR, JUDGE

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Okb/-

Mrs.Vyjayanthimala Viswambharan v. Viswambharan

Case brief

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Mrs.Vyjayanthimala Viswambharan v. Viswambharan

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