Dismissed

Moncey Joseph v. Sonia Moncey

Kerala HC21 Nov 2019Tr.Appeal(C)/17/2019

Case brief

AI extract

What is this about?

The High Court of Kerala held transfer appeals challenging an order to transfer family court cases from Ernakulam to Mavelikkara. Relying on Supreme Court precedents, the bench, noting the parties' respective residences, upheld the transfer as convenient for the woman and both parties, dismissing the appeals.

What did the court decide?

Transfer appeals dismissed; order transferring cases from Ernakulam Family Court to Mavelikkara Family Court upheld.

Moncey Joseph Vs Sonia Moncey — Civil Procedure and Limitation | Kerala HC (2019)

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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.HARILAL

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941

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Tr.Appeal(C).No.12 OF 2019 IN Tr.P(C). 342/2019

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AGAINST THE ORDER DATED 07.08.2019 IN

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Tr.P(C)NO. 342/2019 OF HIGH COURT OF KERALA

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APPELLANT/RESPONDENT IN TRANSFER PETITION NO.342/2019:

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MONCEY JOSEPH,AGED 54,S/O.LATE M.V.JOSEPH, RESIDING AT MODIYIL HOUSE,POTTAKUZHY LANE, ELAMAKKARA P.O.,KOCHI 682 026, NOW TEMPORARILY RESIDING AT MAZHUKERMEL,KALLISSERY P.O., CHENGANNUR,THIRUVANDOOR VILLAGE, CHENGANNUR TALUK,ALAPPUZHA DISTRICT.

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BY ADV. SRI.VARGHESE C.KURIAKOSE

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RESPONDENT/PETITIONER IN TRANSFER PETITION NO.342/2019:

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SONIA MONCEY,AGED 49 YEARS, W/O.MONECEY JOSEPH,EPRA 78,48/9 B, POTTAKUZHY LANE,ELAMAKKARA P.O., KOCHI 682 026,CURRENTLY RESIDING AT 109/6,PUTTINGAL HOUSE,ADOOR 691 523, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL

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THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 21.11.2019, ALONG WITH Tr.Appeal(C).13/2019, Tr.Appeal(C).17/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Transfer Appeal Nos.12, 13 & 17 of 2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR.JUSTICE C.S.DIAS

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THURSDAY,THE 21ST DAY OF NOVEMBER 2019/ 30TH KARTHIKA, 1941

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Tr.Appeal(C).No.13 OF 2019 IN Tr.P(C). 337/2019

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AGAINST THE ORDER DATED 07.08.2019 IN Tr.P(C) 337/2019 OF HIGH COURT OF KERALA

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APPELLANT/RESPONDENT IN Tr.P(C) NO.337/2019:

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MONCEY JOSEPH,AGED 54 YEARS, S/O.LATE M.V.JOSEPH,RESIDING AT MODIYIL HOUSE,POTTAKUZHY LANE, ELAMAKKARA P.O.,KOCHI-682 026, NOW TEMPORARILY RESIDING AT MAZHUKERMEL, KALLISSERY P.O.,CHENGANNUR, THIRUVANDOOR VILLAGE,CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

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BY ADVS. SRI.VARGHESE C.KURIAKOSE SRI.P.J.JOSE SMT.P.M.BINDHUMOL SHRI.SUSANTH SHAJI

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RESPONDENT/PETITIONER IN Tr.P(C)NO.337/2019:

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SONIA MONCEY,AGED 49 YEARS, W/O.MONCEY JOSEPH,EPRA 78,48/9 B, POTTAKUZHY LANE,ELAMAKKARA P.O, KOCHI-682 026,CURRENTLY RESIDING AT 109/6, PUTTINGAL HOUSE, ADOOR-691 523, PATHANAMTHITTA DISTRICT.

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R1 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL

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THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 21.11.2019, ALONG WITH Tr.Appeal(C).12/2019, Tr.Appeal(C).17/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Transfer Appeal Nos.12, 13 & 17 of 2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR.JUSTICE C.S.DIAS

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THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941

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Tr.Appeal(C).No.17 OF 2019 IN Tr.P(C). 309/2019

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AGAINST THE ORDER DATED 07.08.2019 IN Tr.P(C) 309/2019 OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER IN Tr.P(C)NO.309/2019:

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MONCEY JOSEPH,AGED 54 YEARS, S/O.LATE M.V.JOSEPH,RESIDING AT MODIYIL HOUSE,POTTAKUZHY LANE, ELAMAKKARA P.O.,KOCHI-682 026 NOW TEMPORARILY RESIDING AT MAZHUKERMEL, KALLISSERY P.O.,CHENGANNUR, THIRUVANDOOR VILLAGE,CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

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BY ADV. SRI.VARGHESE C.KURIAKOSE

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RESPONDENT/RESPONDENT IN Tr.P(C)NO.309/2019:

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SONIA MONCEY,AGED 49 YEARS, W/O.MONCEY JOSEPH,EPRA 78,48/9B, POTTAKUZHY LANE,ELAMAKKARA P.O., KOCHI-682 026,CURRENTLY RESIDING AT 109/6,PUTTINGAL HOUSE,ADOOR-691 523, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL

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THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 21.11.2019, ALONG WITH Tr.Appeal(C).12/2019, Tr.Appeal(C).13/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Transfer Appeal Nos.12, 13 & 17 of 2019

JUDGMENT

C.S. Dias, J.

These transfer appeals are filed challenging the common order dated 07.08.2019 passed by the learned single Judge in Tr.P(C) Nos. 337/2019, 342/2019 and 309/ 2019, ordering the

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transfer of O.P. Nos. 2353/2018 and 1674/2016 from the Family Court, Ernakulam to the Family Court, Mavelikkara, to be consolidated and jointly tried with O.P. No. 600/2019.

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The respondent had filed O.P. No. 1674/2016 before the Family Court Ernakulam, seeking a decree of divorce, to dissolve her marriage with the appellant. The appellant had filed O.P. No. 2353/2018 before the same court, inter alia, to declare that he is the absolute owner of the plaint schedule properties.

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Subsequently, the respondent filed O.P.

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Transfer Appeal Nos.12, 13 & 17 of 2019

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No. 600/2019 before the Family Court, Mavelikkara, inter alia, seeking a decree for return of money and gold ornaments and declaration.

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The respondent, thereafter, filed Tr.P(C)

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Nos. 337/2019 and 342/2019 to transfer O.P. Nos. 2353/2018 and 1674/2016 from the Family Court, Ernakulam to the Family Court, Mavelikkara and the appellant filed Tr.P(C) No.309/2019 to transfer O.P. No.600/2019 from the Family Court, Mavelikkara to the Family Court, Ernakulam.

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The learned single Judge by the common order, allowed Tr.P(C) Nos. 337/2019 and

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342/2019 and ordered the transfer of O.P. No. 1674/2016 and 2353/2018 from the Family Court, Ernakulam to the Family Court Mavelikkara, and dismissed Tr.P(C) No. 309/2019.

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Aggrieved by the common order passed

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Transfer Appeal Nos.12, 13 & 17 of 2019

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by the learned single Judge, the above transfer

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appeals are filed.

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Heard Adv. Varghese C. Kuriakose, the learned counsel for the appellant and Adv. Rinny Stephen Chamaparambil, the learned counsel for the respondent.

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The counsel for the appellant contended that, the respondent had deliberately filed O.P. No. 600/2019 before the Family Court, Mavelikkara with the sole oblique intention of getting the cases transferred from Family Court, Ernakulam to Family Court, Mavelikkara, to harass the appellant.

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According to the counsel for the appellant, the respondent had filed M.C. No. 32/2016 before the Judicial First Class Magistrate Court - II, Aluva, as early as in 2016, invoking the provisions of The Protection of Women from

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Transfer Appeal Nos.12, 13 & 17 of 2019

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Domestic Violence Act, 2005, and an interim protection order was passed in her favour. It was subsequently that the respondent filed O.P. No. 1674/2016 and O.P. No. 2353/2018 before the Family Court, Ernakulam. When the cases were ripe for trial, the respondent filed O.P. No. 600/2019 before the Family Court, Mavelikkara, by concocting fabricated documents, alleging that she is residing at Adoor.

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On the contrary, the learned counsel for the respondent submits that, the respondent was unable to live in the shared household, despite the interim protection order, because of the harassment of the appellant and she was accordingly constrained to shift her residence from the shared household at Ernakulam to her parental home at Adoor. It was in the above compelling circumstances, that she was forced to

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Transfer Appeal Nos.12, 13 & 17 of 2019

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file O.P. No. 600/2019 before the Family Court, Mavelikkara, seeking a decree for return of money and gold ornaments; where the entrustment took place.

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The learned single Judge after considering the pleadings and documents on record, came to the conclusion that it was only just and expedient to allow Tr.P(C) Nos.337/2019 and 342/2019 and dismiss Tr.P(C) No.309/2019, taking into consideration the convenience of the woman – the respondent.

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On a re-appreciation of the pleadings and documents on record, we find that the respondent had produced Annexure G, which substantiates that she has entered into a lease agreement and taken a house on rent at Adoor, and she has obtained GST registration (Annexure I) to carry on business at Adoor. The records

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Transfer Appeal Nos.12, 13 & 17 of 2019

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prove that the respondent is presently residing at Adoor.

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We have also noticed that in the transfer petition and the affidavit filed by the appellant in Tr.P(C) No. 309/2019, he himself has pleaded that

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he is residing at Chengannur. Likewise in transfer appeal and in the affidavit accompanying the transfer appeal, the appellant has pleaded that he is residing at Chengannur.

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It is no longer res-integra, in view of the categoric declaration of law by the Hon'ble Supreme Court in Sumitha Sing v. Kumar Sanjary and another [(2001) 10 SCC 41)], Mona Aresh Goel v. Aresh Satya Goel [(2000) ( SCC 255], Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap [AIR 2016 SC 3584] and Santhini v. Vijaya Venkatesh [2017 (4) KLT 415 (SC)] and a plethora of decisions

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Transfer Appeal Nos.12, 13 & 17 of 2019

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that, it is the convenience of the woman that has to be looked into, while ordering the transfer of a case from one court to another.

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As already held, the pleadings and the documents produced, substantiate that the appellant and the respondent are residing at Chengannur and Adoor; therefore it would be convenient for both parties to attend to the proceedings at Family Court, Mavelikkara because it is undisputed in the pleadings that the distance from Chengannur to Mavelikkara is only 15 kilometres and Adoor to Mavelikkara is only 20 kilometers. On the other hand the distance from both Chengannur and Adoor to Ernakulam is more than 150 kilometers and it would take more than three hours to travel on one side.

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Therefore, in the totality of facts and circumstances of the above appeals and the law

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Transfer Appeal Nos.12, 13 & 17 of 2019

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declared by the Hon'ble Supreme Court, we do not find any ground to interfere with the impugned common order passed by the learned single Judge; which is passed exercising his power of transfer under Section 24 of the Code of Civil Procedure. The transfer appeals are devoid of merits and are consequently dismissed.

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In the result, the transfer appeals are dismissed.

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Sd/- K. HARILAL JUDGE

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Sd/- C.S. DIAS JUDGE

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ncd

Moncey Joseph v. Sonia Moncey

Case brief

What is this about?

What did the court decide?

Moncey Joseph v. Sonia Moncey

Case brief

What is this about?

What did the court decide?

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