Allowed

Smt.Bindhu.a.J. v. Mr.Siva Prasad.K

Kerala HC28 Nov 2016Tr.P(C)/92/2016

Case brief

AI extract

What is this about?

In this transfer petition, the Kerala High Court agreed to move civil cases involving divorce and child custody pending before the Family Court, Mavelikkara to the Family Court, Kollam. The court held that transferring the cases to Kollam would avoid undue hardship for the petitioner family, including the mother and minor child residing abroad, and allow the respondent to appear conveniently.

What did the court decide?

OP.No.920/2014 and OP(G&W).No.570/2016 pending before Family Court, Mavelikkara were transferred to Family Court, Kollam with direction to transmit records.

Smt.Bindhu.a.J. Vs Mr.Siva Prasad.K — Child Custody and Guardianship | 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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MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938

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Tr.P(C).No. 92 of 2016

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OP 920/2014 OF FAMILY COURT, MAVELIKKARA

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

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PETITIONER(S):

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1. SMT.BINDHU.A.J.AGED 40 YEARS, D/O. JAGADAMMA, RESIDING AT GARGI VEEDU, PUNNUKANNOOR, PERUMPUZHA P.O., ELLAMPALLOOR VILLAGE, KOLLAM DISTRICT.

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2. SMT.JAGADAMMA P.K, AGED 66 YEARS, W/O. ANANDAN, RESIDING AT GARGI VEEDU, PUNNUKANNOOR, PERUMPUZHA P.O. ELLAMPALLOOR VILLAGE, KOLLAM DISTRICT.

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BY ADV. SRI.S.SREEKUMAR (KOLLAM)

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RESPONDENT:

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MR.SIVA PRASAD.K,AGED 44 YEARS, S/O. KARUNAKARAN, RESIDING AT MANGATTETH VEEDU, ELLIPAKULAM P.O., VALLIKUNNAM VILLAGE, MAVELIKARA, ALAPUZHA DISTRICT - 690 503.

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BY ADV. SRI.B.KRISHNA MANI

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THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2016, ALONG WITH TPC. 418/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

K.V.

TPC 92 OF 2016:

APPENDIX

PETITIONERS ANNEXURES:

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A1: COPY OF THE O.P.NO 920 OF 2014 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT,MAVILIKARA.

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A2: COPY OF THE O.P.NO 927 OF 2014 FILED BY THE PETITIONER BEFORE THE FAMILY COURT KOLLAM.

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RESPONDENTS ANNEXURES: NIL

/TRUE COPY/

P.A.TO JUDGE

K.V.

K. RAMAKRISHNAN, J.

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....................................... Tr.P.(C).No.92 & 418 of 2016

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Dated this the 28^th day of November, 2016.

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O R D E R

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These petitions were filed by the petitioners for transfer of OP.No.920/2014 and OP.(G&W).No.570/2016 both pending before the Family Court, Mavelikkara to the Family Court, Kollam under section 24 of the Code of Civil Procedure.

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The common case in both the petitions is that the first petitioner is the wife of the respondent and a child was born to them in that wedlock. Due to difference of opinion, they are now residing separately. The respondent herein filed OP(G&W). No.570/2016 before the Family Court, Mavelikkara for custody of the minor child against the petitioners, who are the wife's mother and sister's daughter. The first petitioner filed OP.No.927/2014 against the respondent for divorce. The first petitioner is now working abroad and the child is being looked after by the maternal grandmother, the second petitioner who is conducting the case as the power of attorney of the first petitioner. Further there is a case pending before the Family Court, Mavelikkara as OP.No.920/2014 for return of gold ornaments filed by the respondent against the petitioners. There is another case pending between the first petitioner and the respondent as OP.No.927/2014 before the Family Court, Kollam for divorce. So if the cases are transferred to the Family Court,

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Tr.P.(C).No.92 & 418 of 2016 2

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Kollam it will be convenient for both the parties to conduct the cases. Hence these petitions.

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The respondent entered appearance and filed counter affidavit in Tr.P.C.No.418/2016 wherein he had contended that the application is not maintainable. The first petitioner earlier married one Binil and a child by name Anand was born to them in that wedlock. According to them, the child was born to her elder sister who is settled in Chenani. A joint petition for divorce was filed by Binil and the first petitioner and the marriage was dissolved by mutual consent decree evidenced by Ext.R1(a). It is thereafter that the marriage has been solemnized between the first petitioner and the respondent. The right to claim maintenance for the child was relinquished as per Ext.R1(a) from the former husband. At the instance of the petitioners, a crime was registered as Crime No.276/2011 of Vallikiunnam police station alleging offences under section 498 A of the Indian Penal Code and the petitioners moved this court for anticipatory bail, and that was granted as per order in BA.No.5728/2011 evidenced by Ext.R1(b). After investigation, final report was filed and it was taken on file as C.C.No.159/2012 on the file of the Judicial First Class Magistrate Court, Kayamkulam and when the matter was settled between the parties, he filed Crl.M.C.No.3391/2012 before this court to quash the proceedings on the basis of settlement and

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Tr.P.(C).No.92 & 418 of 2016 3

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this court by Ext.R1(d) order, quashed the proceedings in C.C.No159/2012 on the file of the Judicial First Class Magistrate Court, Kayamkulam. According to the respondent, after dismissal of that case, they lived together as husband and wife and thereafter again difference of opinion arose and she left the house. He filed W.P.(Crl.)No.174/2016 before this court for custody of the child stating that the child is under illegal custody and this court by Ext.R1(g) judgment dismissed the writ petition leaving open the right of the party to move the appropriate family court. Accordingly, the respondent filed OP(G&W).No.570/016 for custody of the child and he also filed OP.No.920/2014 for return of god ornaments and other reliefs. The petition filed by the first petitioner for a divorce was dismissed by the family court. So there is no case pending before that court evidenced by Ext.R1(i). So there is no necessity to transfer the cases as claimed. He prays for dismissal of these petitions.

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Heard Sri.S. Sreekumar Kollam, learned counsel

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appearing for the petitioners in both the cases and Sri. B. Krishnamani, learned counsel appearing for the respondent.

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Learned counsel for the petitioners submitted that since

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the first petitioner is working abroad and her case is being conducted by her mother on the bass of power of attorney, it is difficult for her to go to Mavelikara to conduct the case. Further

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Tr.P.(C).No.92 & 418 of 2016 4

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the child is with the mother of the first petitioner and if the case is transferred to Kollam or Chavara, it will be convenient for them.

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On the other hand, learned counsel for the respondent submitted that the reason for transfer alleged in the divorce case is pending before the Family Court, Kollam and if these cases are transferred to that court, it will be convenient for both the parties. But that petition was dismissed for default for not taking steps and the respondent did not receive notice in that case at all. It is only to harass the respondent that the present petition has been filed to transfer the cases.

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It is an admitted fact that it is a second marriage as far as the first petitioner and the respondent herein. The first petitioner's earlier marriage was dissolved by filing a joint petition filed by the earlier husband and first petitioner evidenced by the document produced by the respondent himself. It is also an admitted fact that in the present wedlock, a child was born to them and the child is with the mother and being looked after by the grand mother in the absence of the mother. Earlier a crime was registered under section 498 A of the Indian Penal Code and that was settled between the parties and on the basis of the settlement, the case was quashed by this court. According to the respondent, after quashing the case, they lived together and thereafter she left the matrimonial home with the child and he was

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Tr.P.(C).No.92 & 418 of 2016 5

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compelled to file a habeas corpus petition and this court, by the order produced, directed the respondent to approach the family court for necessary reliefs. Accordingly the present guardian O.P was filed. It is also not in dispute that the first petitioner is working abroad and she is represented by her mother. Mother is also a party to both the cases filed by the husband. She is aged 66 years. Admittedly, the child is now with the maternal grand mother namely the second petitioner in both the cases. A report from the family court shows that the divorce petition filed by the petitioners as OP.No.927/2014 was dismissed by that court for default but the counsel for the petitioners submitted that the petition for restoration has been filed and that is pending before that court. The petitioners are ladies. Considering the fact that the child is with the maternal grandmother and all the petitioners are ladies, asking them to go to Mavelikkara to conduct the case will cause unnecessary hardship to them. The respondent can very well appear before the Family Court, Kollam and conduct the case as the petition for restoration filed by the first petitioner to restore OP.No.927/2014 of that court is pending before that court. Considering the circumstances, this court feels that it is necessary in the interest of justice to transfer both the cases OP.No.927/2014 and OP(G&W)No.570/2016 to the Family Court, Kollam from the Family Court, Mavelikkara.

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Tr.P.(C).No.92 & 418 of 2016 6

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So both these petitions are allowed. OP.No.920/2014 and OP (G&W).No.570/2016 both pending before the Family Court, Mavelikkara are withdrawn and transferred to the Family Court, Kollam for disposal. The Family Court, Mavelikkara is directed to transmit the records of the above cases to the Family Court, Kollam immediately. Both the counsel submitted that if a date is fixed for appearance of the parties, they will appear before the transferee court and co-operate with the disposal of the cases. So parties are directed to appear before the Family Court, Kollam on 16.1.2017. If the cases are transferred to the Family Court, Kollam and if the respondent appears there, then the petitioners can consider the question of giving notice in the restoration application to the counsel appearing for the respondent in that court. So that, that also can be considered and appropriate orders can be passed by that court. The court below can consider the question of expeditious disposal of all the cases at the earliest possible time. If any application for interim custody of the child has been filed, that also can be considered by the court below immediately.

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

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K. RAMAKRISHNAN, JUDGE.

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Smt.Bindhu.a.J. v. Mr.Siva Prasad.K

Case brief

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What did the court decide?

Smt.Bindhu.a.J. v. Mr.Siva Prasad.K

Case brief

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