Partly allowed

Mumthas v. Abdul Salim

Kerala HC27 Oct 2016Tr.P(C)/401/2015

Case brief

AI extract

What is this about?

The High Court considered two transfer petitions filed in matrimonial disputes. Petitioners sought transfer of the husband's case to Kottarakkara due to hardship in traveling to Nedumangad. The husband sought transfer of the wife's case to Nedumangad. The Court balanced convenience and marital circumstances.

What did the court decide?

Tr.P.(C).No.516/2015 dismissed. Tr.P.(C).No.401/2015 allowed. OP.No.605/2015 transferred to Family Court, Kottarakkara.

Mumthas Vs Abdul Salim — Matrimonial and Divorce | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938

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Tr.P(C).No. 401 of 2015

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OP 605/2015 OF FAMILY COURT, NEDUMANGAD TO FAMILY COURT, KOTTARAKKARA

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PETITIONER(S):

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1. MUMTHAS, S/O.KHADEEJA BEEVI, RUBI MANZIL, KARUNTHALAKKODU MURI, NILAMEL VILLAGE, KOTTARAKKARA.

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2. BADHARUDHEEN, S/O.ABDUL KAREEM, RESIDING AT -DO- -DO-

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BY ADV. SRI.SAJU.S.A

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RESPONDENT(S):

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ABDUL SALIM,

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S/O.IBRAHIM KUNJU, THADATHIL VEEDU, KANCHINADU P.O., ANAKUDY MURI, KALLARA VILLAGE, NEDUMANGAD TALUK, PIN -695 607.

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-10-2016 ALONG WITH TPC.NO.516/2015 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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msv/

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Tr.P(C).No. 401 of 2015

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------------------------

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 A TRUE COPY OF THE PETITION DTD.9.6.2015 IN OP.572/2015 PENDING BEFORE FAMILY COURT, KOTTARAKKARA.

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EXHIBIT P2 A TRUE COPY OF I.A.1169/2015 IN OP.605/2015 DTD.25.6.2015 PENDING BEFORE FAMILY COURT, NEDUMANGAD.

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RESPONDENT(S)' EXHIBITS:

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------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

K. RAMAKRISHNAN, J.

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.................................................. Tr.P.(C).Nos.401 & 516 of 2015

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....................................................... Dated this the 27^th day of October, 2016.

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O R D E R

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Tr.P.(C).No.401/2015 was filed by the petitioners, who are the wife and a relative of the wife, for transfer of OP.No.605/2015 pending before the Family Court, Nedumangad to the Family Court, Kottarakkara. While Tr.P.(C).No.516/2015 was filed by the husband, who is the first respondent in OP.No.572/2015 to transfer that case from the Family Court, Kottarakkara to the Family Court, Nedumangad both under section 24 of the Code of Civil Procedure.

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The common case of the petitioners in both these cases is that the marriage between Abdul Salam and Mumthas, who are the petitioner and first respondent in Tr.P.(C).No.516/2015 and first petitioner and sole respondent in Tr.P.(C).No.401/2015 was solemnized on 11.10.2004 at Nilamel and two children were born to them in that wedlock. After some time, their relationship strained. Now the wife is residing with the children at her parental house at Nilamel which is within the jurisdiction of the Family Court, Kottarakkara. The wife filed OP.No.572/2015 before the Family Court, Kottarakkara against the husband and his relatives, who are shown as respondents 2 to 4 in this petition, for return of gold ornaments, maintenance and other monetary reliefs and that case was filed before the Family Court, Kottarakkara. The

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Tr.P.(C).Nos.401 & 516 of 2015 2

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husband filed OP.No.605/2015 before the Family Court, Nedumangad against the petitioners in Tr.P.(C).No.401/2015 for declaration of his right over the plaint schedule property and other consequential reliefs. The wife filed the petition for transfer stating that it is very difficult for her to go to Nedumangad to conduct the case, whereas the husband filed the petition for transfer of the case filed by the wife on the ground that the wife is residing at Nilamel which is in equi distance between Nedumangad and Kottarakkara. So even if this case is transferred to Nedumangad, no hardship will be caused to her. So both of them filed the respective petitions for transfer of the respective cases to the places of their convenience.

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Heard Sri. S.A. Saju, leaned counsel appearing for the petitioners in Tr.P.(C).No.401/2015 and the first respondent in Tr.P.(C).No.516/2015 and Sri. P.V. Kunhikrishnan, learned counsel appearing for the husband in both the cases.

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Learned counsel for the wife submitted that in order to go to Nedumangad she will have to go to Venjaramoodu and then go to Nedumangad. She will have to board two buses and she is without any income. She is depending on her parents. So it is difficult for her to go to Nedumangad to conduct the case and also she is having two minor children.

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On the other hand, learned counsel appearing for the

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Tr.P.(C).Nos.401 & 516 of 2015 3

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husband submitted that she is residing at Nilamel which is equi distance between Nedumangad and Kottarakara. Further, if the case is transferred, she alone need to travel to Nedumangad whereas if the case is allowed to be retained in Kottarakkara, five persons including the husband has to go to Kottarakkara to conduct the case and they will have to travel more distance as well.

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The relationship between the parties in both the cases are not in dispute. It is also mentioned in the petition that when the husband went to Kottarakkara, he was attacked by the wife's relatives on two occasions. So it is difficult for him to go to Kottarakkara. The marital relationship between the parties and paternity of the children are not in dispute. It is also an admitted fact that OP.No.572/2015 was filed by the wife against the husband and his relatives for return of gold ornaments, maintenance and other reliefs. That was filed before the Family Court, Kottaraara. The husband filed OP.No.605/2015 before the Family Court, Nedumangad against the wife and his relatives who are petitioners in Tr.P.(C).No.401/2015 for declaration of his right over the property. Admittedly the wife is without any employment. She is depending on her parents for her livelihood and also for the livelihood of the children. She is residing within the jurisdiction of the Family Court, Kottarakara and she is conveniently conducting

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Tr.P.(C).Nos.401 & 516 of 2015 4

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the case at Family Court, Kottarakkara. She can go there without the help of others as she was accustomed for that purpose. But if the case is transferred to Nedumangad, though distance wise it may be less, she will have to board two buses which may cause unnecessary hardship to her. Further, the place of convenience of the wife will have to be considered while considering the question of transfer cases in matrimonial dispute. Under such circumstances, this court feels that the case filed by the husband at Family Court, Nedumangad has to be transferred to the Family Court, Kottarakkara where he is appearing along with other respondents to conduct the case and other respondents have not come for transfer stating any inconvenience for them for that purpose. Further, the husband can conduct the case for and on behalf of others also as the main relief was claimed against the husband in that case. So under such circumstances, the husband is not entitled to get transfer of case filed by the wife whereas the wife is entitled to get transfer of the case filed by the husband to the Family Court, Kottarakkara.

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So Tr.P.(C).No.516/2015 is dismissed and Tr.P.(C). No.401/2015 is allowed and OP.No.605/2015 pending before the Family Court, Nedumangad is withdrawn and transferred to the family Court, Kottarakkara to be tried along with OP.No.572/2015 pending before that court. The Family Court, Nedumangad is

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Tr.P.(C).Nos.401 & 516 of 2015 5

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directed to transmit the records to the Family Court, Kottarakkara immediately.

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Registry is directed to communicate a copy of this order to both the courts immediately.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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Mumthas v. Abdul Salim

Case brief

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Mumthas v. Abdul Salim

Case brief

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