Dismissed

Vidhya Mundekkat, v. Akhilesh Jayaram

Kerala HC10 Nov 2021Tr.Appeal(C)/8/2021

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a transfer appeal filed by an appellant-wife seeking to move matrimonial cases from Kozhikode to Chavara Family Court. The Bench held that her permanent residence remained in Kozhikode and rejected convenience arguments in light of available video conferencing facilities under the Electronic Video Linkage Rules, 2021.

What did the court decide?

The transfer petition filed under Section 24 CPC was affirmed; O.P.Nos.354 of 2019 and 749 of 2020 were to remain in Family Court, Kozhikode.

Vidhya Mundekkat, Vs Akhilesh Jayaram — Matrimonial and Divorce | Kerala HC (2021)

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C.R.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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WEDNESDAY,THE 10^TH DAY OF NOVEMBER 2021/19TH KARTHIKA,1943

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TR.APPEAL(C) NO. 8 OF 2021

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AGAINST THE JUDGMENT DATED 01.07.2021 IN Tr.P(C) NO.283 OF 2021 OF HIGH COURT OF KERALA, ERNAKULAM APPELLANT:

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VIDHYA MUNDEKKAT,

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AGED 34 YEARS

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D/O. KESAVAN MUNDEKKAT, KAILAS BHAVAN-129, AMRITHAPURI, AMRITHAPURI P.O., VALLIKKAVU, KARUNAGAPPALLY, KOLLAM-690546 (FROM AMRUTHAM, NEAR ULLOOR TEMPLE, MERIKUNNU P.O., KOZHIKODE-673017).

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BY ADV SRI.B.MOHANLAL

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RESPONDENT:

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AKHILESH JAYARAM,

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S/O. P.C. JAYARAM, AGED 40 YEARS, AISWARYA, GANAPATHYKAVU ROAD, EAST HILL, WEST HILL P.O., KOZHIKODE-673005. (FROM 4/19, III STREET, SAIBABA COLONY, VIRUGAMBAKKOM, CHENNAI-600092).

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SRI K.A.SALIL NARAYANAN.

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OTHER PRESENT:

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THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR FINAL HEARING ON 27.10.2021, THE COURT ON 10.11.2021 DELIVERED THE FOLLOWING:

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Tr.Appeal (C) No.8 of 2021

C.R.

JUDGMENT

Ajithkumar, J.

This is an intra-court appeal under Section 5(i) of the Kerala High Court Act, 1958.

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The appellant filed Tr.P.(C) No.283 of 2021 under Section 24 of the Code of Civil Procedure, 1908. She wanted to transfer O.P.Nos.354 of 2019 and 749 of 2020 pending on the files of the Family Court, Kozhikode to Family Court, Chavara. As per order dated 01.07.2021 the transfer petition was dismissed. Feeling aggrieved of the said order, the appellant preferred this appeal.

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The appellant is the wife of the respondent. Their marriage was solemnized on 31.01.2011 at Kozhikode. They were blessed with a girl child born on 29.12.2012. Discord in the marital relationship resulted in filing of cases by either side, one after the other. The appellant filed O.P.No.354 of 2019 before the Family Court, Kozhikode for restitution of conjugal rights. She also filed M.C.No.31 of 2016 before the

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Judicial First Class Magistrate Court-I, Kozhikode alleging domestic violence. The respondent filed O.P.(G&W) No.574 of 2017 for getting his guardianship declared and custody of the child and O.P.No.749 of 2020 for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955, both before the Family Court, Kozhikode. M.C.No.31 of 2016 was dismissed. However, the respondent continues to pay Rs.10,000/- every month as maintenance to the minor child as per interim order in the case. O.P.(G&W) No.574 of 2017 was also dismissed,

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however, allowing the respondent to have visitation rights to the child. Thus, the litigations between the parties now pending before the Family Court, Kozhikode are O.P.No.354 of 2019 and O.P.No.749 of 2020.

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The appellant, contending that she shifted her permanent residence to Vallikkavu in Karungappally, wanted to transfer the said cases to the Family Court, Chavara. It is her case that she as well her daughter are unable to travel about 330 kilometers to reach Kozhikode to attend the court, whereas the respondent, who is residing at Chennai, can without any

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inconvenience, come over to Chavara, and therefore, justice demands transfer of the said cases to Family Court, Chavara.

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The respondent, on the other hand, contended that the petitioner is still a permanent resident of Kozhikode and claiming so only she filed cases before both the Family Court and the Magistrate’s Court at Kozhikode. The petitioner after getting the child admitted to the Amrita Vidyalayam, Karunagappally moved for transfer of the cases with the object of thwarting the visitation right given to the respondent by the Family Court.

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The learned Single Judge, after considering the whole matter in detail, dismissed the transfer petition. Apart from the finding that there was no substance in the contention of the appellant that she had shifted her residence to Karungappally, the learned Single Judge emphasised that even going by the facts admitted by the appellant, the Family Court, Kozhikode alone has the jurisdiction to try the cases.

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Heard Sri. B. Mohanlal, learned counsel for the appellant and Sri. K.A. Salil Narayanan, learned counsel for

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the respondent.

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A Full Bench of this Court reminded about the restraint required while considering an appeal under Section 5(i) of the Kerala High Court Act, 1958 against order of a Single Judge on an application for transfer under Section 24 of the Code of Civil Procedure, 1908 in Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust [2005 (4) KLT 865] .

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Paragraph 15 of the said judgment reads thus:

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“15. Even though an order passed at the instance of one party to the suit by the single Judge under Section 24 of the Code of Civil Procedure is appealable under Section 5(i) of the High Court Act a word of caution is also necessary. When an appeal is filed against the order passed under Section 24 by a learned single Judge of the High Court, Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave and substantial injustice.”

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Keeping the above in mind, we shall consider

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whether the order of the learned Single Judge needs interference.

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The learned counsel for the appellant relied on the decisions in Sumitha Singh v. Kumar Saanjay and others, [AIR 2002 SC 396], Mangla Patil Kale v. Sanjeev Kumar Kale [(2003) 10 SCC 280], and Anindita Das v. Srijit Das [(2006) 9 SCC 197] to contend that convenience of the wife is always the paramount consideration while deciding a request for transfer of a case from one Family Court to another. We notice that each of the said cases was decided on the facts of that case. No principle of law was laid down in any of those cases. The observations in Anindita Das (supra) however, has relevance while deciding this appeal. It says, “it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by this Court. xx xx This Court is now required to consider each petition on its merit”. It is therefore not an invariable rule that whenever a wife makes a request pointing out her inconvenience, the transfer of the case to a court of her choice is automatic. Each case

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has to be considered in the light of the facts and circumstances of that case.

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This takes us to the facts of this case. O.P.No.354 of 2019 was filed by the appellant before the Family Court, Kozhikode on 27.03.2019. Her address in it is given as ‘Amrutham, Near Ulloor Temple, Merikunnu P.O, Kozhikode673017’. O.P.No.749 of 2020 was filed by the respondent against the appellant on 24.8.2020 with her very same Kozhikode address. Admittedly, the appellant received notice

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sent in O.P.No.749 of 2020 in that address. The appellant thus declared that her “registered address” in the context of Order VI, Rule 14A of the Code of Civil Procedure, even during the period much after she claimed to have shifted her residence to Karunagappally, Kollam, is her Kozhikode address. This means that her permanent residence continue to be at Kozhikode. Her case now is that she shifted residence permanently to Karunagappally, Kollam in April, 2018.

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The fact that the child was admitted to Amrita Vidyalayam at Karunagappally is not disputed by the

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respondent. The learned counsel for the respondent would point out that the child was got admission in Amrita Vidyalayam, Karungappally with the sole object of denying the visitation right of the respondent as per the order of the Family Court, Kozhikode in O.P.No.574 of 2017. Annexure A3 would go to show that the appellant has been residing in Amrita Apartments at Amritapuri, Kollam since 2018. Annexure A4 is to the effect that her child was admitted to the Amrita Vidyalayam, at Karunagappally on 13.4.2018. Annexure A5 domestic gas consumer card shows that the appellant availed a gas connection with the address mentioned in Annexure A3. What proves from these documents is that the appellant put up residence at Karunagappally, Kollam and admitted her child to Amrita Vidyalayam, Karunagappally in April, 2018.

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The learned Counsel of the Appellant pointing out the provisions of Section 19 of the Hindu Marriage Act, especially clause (iiia), submitted that the Family Court, Chavara is now the court having jurisdiction to try the cases.

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Clause (iiia) of Section 19 of the Hindu Marriage Act says that in case the wife is the petitioner, the petition shall be presented to the court within the limits of whose jurisdiction the wife resides at the time of the presentation of the petition.

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We pointed out above that the appellant’s permanent residence continued to be Kozhikode even in 2020. She is therefore certainly estopped from canvassing for the position that the Family Court, Chavara is the jurisdictional court, having she shifted her residence to Karunagappally in April, 2018. The finding of the learned Single Judge that the court having jurisdiction is the Family Court, Kozhikode is well founded and based on the facts. There is absolutely no reason to interfere with that finding.

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Now, the question is whether on the basis of the appellant’s claim of shifting her residence to Karunagappally in 2018 she entitled to get the cases transferred to the Family Court, Chavara? Inconvenience of the appellant and the child to frequently travel 330 kilometers for attending the court at Kozhikode is highlighted. Family Court, Chavara on the other

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hand is just 6 kilometers away from her present residence. In this context, the report dated 25.08.2021 submitted by the Judge, Family Court requires mention. It is reported that the first session of the counselling is used to be conducted through video conferencing and if necessary only, the second session of the counselling would be conducted physically and that too, subject to the convenience of the parties. It is further reported that on the dates of formal posting, presence of the parties is not being insisted at all. Of course, it is stated

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by the learned judge that for recording evidence, parties shall appear in accordance with the time slot fixed. Therefore, the only occasions where the parties to the proceedings have to attend the court are the second session of the counselling and to record evidence.

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In State of Maharashtra v. Praful B. Desai

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[(2003) 4 SCC 601] the Apex Court held that the term ‘evidence’ includes electronic evidence and that video conferencing may be used to record evidence. It was observed that developments in technology have opened up

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the possibility of virtual courts which are similar to physical courts. The Court held:

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“Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence… In fact he/she is present before you on a screen. Except for touching one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in the presence of each other. Recording of such evidence would be as per “procedure established by law”.

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In SUO MOTU WRIT (CIVIL) NO.5/2020, the

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Apex Court taking into account the pandemic situation following the spread of COVID-19, issued as per its order dated 06.04.2020, interalia , the following directions:

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“6. Therefore, in exercise of the powers conferred on the Supreme Court of India by Article 142 of the Constitution of India to make such orders as are necessary for doing

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complete justice, we direct that:

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xx xx xx

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v. The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court.

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vi. The Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities. If necessary, in appropriate cases courts may appoint an amicus-curiae and make video conferencing facilities available to such an advocate.

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vii. Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a courtroom the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.”

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The Electronic Video Linkage Rules for Courts

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(Kerala), 2021 are now framed and notified to come into force

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with effect from 25.8.2021. We may extract the relevant rules in order to have a proper understanding and requiring a

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mention in the context of this and similar other cases:

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“ 2. Definitions .-

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xx xx xx

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(m) “Remote Point” means a place where any person or persons are required to be present or appears, through a video link.

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(n) “Remote User” means a user participating in Court proceedings through Electronic Video Linkage at a Remote Point.

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xx xx

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3. Principles. - (1) Electronic Video Linkage facilities may be used at all stages of judicial proceedings or under any other special law for the time being in force, and also to such other proceedings which are conducted by the Court. (2) All proceedings conducted in a Court by way of Electronic Video Linkage shall be deemed to be judicial proceedings and all the courtesies and protocols applicable to a Court shall apply to these virtual proceedings. The protocol provided in Schedule I of these Rules shall be adhered to, for the conduct of the proceedings under these Rules.

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xx xx

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6. Application for Appearance, Evidence and Submission through Electronic Video Linkage. -xx xx (2) In proceedings before the Family Court, Electronic Video Linkage shall be allowed only after completing the reconciliation process subject to the condition that both the parties file consent memorandum for Electronic Video Linkage. When either of the party is not able to attend the reconciliation process in person, the Family Court may for reasons to be recorded in writing, allow the reconciliation process to be done through Electronic Video Linkage.

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xx xx

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8. Examination of persons .- (1) In civil cases, the party requesting for recording statement of a person through Electronic Video Linkage, shall inform the Court the location of the person, the time, place and the availability of the technical facilities and his willingness to be examined through Electronic Video Linkage.

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(2) In criminal cases, where the person to be examined is a prosecution witness or court witness, the prosecution and where the person to be examined is a defence witness the defence counsel, will inform the Court, location of the person, time, place and the availability of

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the technical facilities.

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xx xx

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(9) Where a party or a lawyer requests that in the course of the proceedings some privileged communication may have to take place, the Court shall pass appropriate orders in that regard.

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xx xx

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(16) The Court shall obtain the signature of the person being examined on the transcript once the examination is concluded. The signed transcript shall form part of the record of the judicial proceedings. The signature of the person being examined shall be obtained in either of the following ways:

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(i) If digital signatures are available at the concerned Court Point and Remote Point, the soft copy of the transcript digitally signed by the Presiding Judge at the Court Point shall be sent by the official electronic mail to the Remote Point where a printout of the same will be taken and signed by the person examined. A scanned copy of the transcript signed by the person examined and the Co-ordinator at the Remote Point shall be transmitted by official electronic mail to the Court Point. The hard copy of the signed transcript shall be

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despatched, along with the other documents preferably within three days of recording by the Co-ordinator at the Remote Point to the Court Point either by authorised courier service or by registered speed post.

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(ii) If digital signatures are not available, the print out of the transcript shall be signed by the Presiding Officer and the representatives of the parties, if any, at the Court Point and thereafter it shall be sent in non-editable scanned format to the Remote Point through the official electronic mail where a print out of the same will be taken and signed by the person examined and countersigned by the Co-ordinator at the Remote Point. A non-editable scanned format of the transcript so signed shall be sent by the Co-ordinator of the Remote Point to the Court Point, where a print out of the same shall be taken and the same shall form part of the records. The hard copy of the signed transcript should also be despatched preferably within three days of recording along with other documents, if any, by the Coordinator at the Remote Point to the Court Point by authorised courier service or by registered speed post.

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xx xx

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(19) The Court may, at the request of a witness to be

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examined, or on its own motion, taking into account his best interests, direct appropriate measures to protect the privacy of the witness bearing in mind aspects such as age, gender, physical condition and recognised customs and practices.

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xx xx

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9. Exhibiting or Showing Documents or Object to

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Required Person or Accused at Remote Point. - (1) If in the course of examination of a Required Person or Accused at a Remote Point through Electronic Video Linkage, it is necessary to show a document or object to him, the Court may permit the same to be shown in the following manner:-

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(a) If the document or the object is at the Court Point it can be shown by zooming the camera to the document or to the object or by electronically transmitting the scanned image to the remote centre including through a document visualizer and the copy so transmitted be shown to the Required Person or Accused.

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(b) If the document is at the Remote Point, by putting it to the person being examined and transmitting a copy of it to the Court Point electronically including through a document visualizer. The hard copy of the

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document should also be sent subsequently by the Co-ordinator at the Remote Point to the Court Point along with other documents, if any, preferably within three days by authorised courier service or by registered speed post.”

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Rule 3(1) of the Video Linkage Rules makes it clear

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that the electronic video linkage facility can be used at every stage of the judicial proceedings. Rule 8(9) allays apprehension of the parties about losing of their privacy during the proceedings say, it is counselling, recording of evidence or in-camera proceedings. Rule 8(16) provides for protection with respect to privileged communications. The Rules have taken care of every kind of possible practical inconvenience during the process of video conferencing both at the court centre as well as the remote centre.

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We may also point out that the provisions contained in Rule 9 provides facilities for confronting documents with the witnesses during the course of examination. How to get the deposition signed is dealt with in Rule 8(16). Thus the Video Linkage Rules, 2021 provides for

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exhaustive procedure for the conduct of every stage of judicial proceedings through video conferencing. When such a facility is available, the apprehension of the appellant that by continuing her cases in the Family Court, Kozhikode she will be put to inconvenience, has no basis. We hold that the request for transfer of O.P.Nos.354 of 2019 and 749 of 2020 from the Family Court, Kozhikode to Family Court, Chavara can only fail.

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Difficulty for taking the child to the Family Court, Kozhikode is another reason pointed out by the appellant for transfer of the cases. Visitation rights to the respondent was allowed by the Family Court, Kozhikode in O.P(G&W) No.574 of 2017 which was already disposed of. Transfer of O.P.Nos.354 of 2019 and 749 of 2020; one for restitution of conjugal rights and the other for dissolution of marriage does not anyway mitigate the ordeal of travel, if any, required to comply with the order for visitation and custody. Hence, in our

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view that also is not reason for transfer of O.P.Nos.354 of 2019 and 749 of 2020.

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In view of the direction of the Apex Court and the provisions in the Video Linkage Rules, 2021, which are in force with effect from 25.08.2021, there is no legal impediment to conduct any proceeding of a case through video conferencing. Facility in the Family Courts for conducting video conferencing is limited now; we are informed that designated video conferencing equipment is yet to be supplied to many of the Family Courts. We hope and expect that the High Court will ensure supply of necessary video conferencing equipment in all the Family Courts without delay.

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The conclusion is irresistible: we confirm the order of the learned Single Judge. The transfer appeal fails and it is dismissed.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

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Tr.Appeal (C) No.8 of 2021

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APPENDIX OF TR.APPEAL(C) 8/2021

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PETITIONER ANNEXURE

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Annexure A1 THE ORIGINAL CERTIFICATE DATED 14/07/2021 ISSUED FROM THE AUTHORIZED SIGNATORY, AMRITHA APARTMENTS TO THE APPELLANT. Annexure A2 THE ORIGINAL CERTIFICATE DATED 14/07/2021 ISSUED BY THE PRINCIPAL OF THE SCHOOL TO THE APPELLANT. Annexure A3 THE ORIGINAL DOMESTIC GAS CUSTOMER CARD OF INDANE GAS CONNECTION OBTAINED IN FAVOUR OF THE PETITIONER FROM KEETHI INDANE SERVICES, KARUNAGAPPALLY DATED 14/07/2018.

Vidhya Mundekkat, v. Akhilesh Jayaram

Case brief

What is this about?

What did the court decide?

Vidhya Mundekkat, v. Akhilesh Jayaram

Case brief

What is this about?

What did the court decide?

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