Partly allowed

Haseena S., v. Shameer Khan a.

Kerala HC17 Jun 2022Tr.P(C)/86/2021

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of three common transfer petitions filed by a husband, his father, and a wife regarding opposite orders in Family Court. Prioritizing the welfare of the wife and four minor children despite the husband's job constraints, the court held that comparative hardship favored the respondent. Consequently, petitions to transfer the wife's money claim to Kollam were dismis

What did the court decide?

Tr.P(C) No.295/2021 dismissed; Tr.P(C) Nos.86 and 99/2021 allowed transferring OPs 1282 and 1295/2020 from Nedumangad to Kollam Family Court.

Haseena S., Vs Shameer Khan a. — Matrimonial and Divorce | Kerala HC (2022)

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Tr.P (C) Nos. 86,99 & 295 of 2021

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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 C.S.DIAS

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FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
TR.P(C) NO. 86 OF 2021

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TO TRANSFER OP 1282/2020 OF FAMILY COURT, NEDUMANGAD
PETITIONER/S:

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HASEENA S.,
AGED 32 YEARS
D/O. SHAHIDA BEEVI, KANNIYAZHIKAM VEEDU,
THEKKUMBHAGAM CHERIYIL, KOTTAPPURA, PARAVOOR,
KOLLAM 691 301.
BY ADV M.R.SASITH

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RESPONDENT/S:

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SHAMEER KHAN A.,
AGED 37 YEARS
S/O. ALI KUNJU ASHARAF, CHARUVILA PUTHEN VEEDU,
KURUMBAYAM P.O. KALLARA, THIRUVANANTHAPURAM 695608.
BY ADVS.
SRI.BIJITH S.KHAN
SRI.N.ANAND
SMT.APARNA UDAYAKUMAR
KUM.CHITHRA P.GEORGE

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THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17.06.2022 ALONG WITH TRPC NOS 99 AND 295 OF
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Tr.P (C) Nos. 86,99 & 295 of 2021

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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 C.S.DIAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
TR.P(C) NO. 99 OF 2021
TO TRANSFER OP 1295/2020 OF FAMILY COURT, NEDUMANGAD

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PETITIONER/S:

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HASEENA.S.
AGED 32 YEARS
D/O.SHAHIDA BEEVI, KANNIYAZHIKAM VEEDU,
THEKKUMBHAGAM CHERIYIL, KOTTAPPURA, PARAVOOR,
KOLLAM-691 301.
BY ADV M.R.SASITH

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RESPONDENT/S:

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SHAMEER KHAN.A.
AGED 37 YEARS
S/O.ALI KUNJU ASHARAF, CHARUVILA PUTHENVEEDU,
KURUMBAYAM P.O., KALLARA, THIRUVANANTHAPURAM-695
608.
BY ADVS.
SRI.BIJITH S.KHAN
SRI.N.ANAND
KUM.CHITHRA P.GEORGE
SMT.APARNA UDAYAKUMAR

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THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17.06.2022 ALONG WITH TRPC NOS 86 AND 295 OF
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Tr.P (C) Nos. 86,99 & 295 of 2021

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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 C.S.DIAS

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FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
TR.P(C) NO. 295 OF 2021

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TO TRANSFER OP 1432/2020 OF FAMILY COURT,KOLLAM

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PETITIONER/S:

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1SHAMEER KHAN A.
AGED 37 YEARS
S/O ALI KUNJU ASHRAF,
CHARUVILA PUTHENVEEDU,
KURUMBAYAM P.O,
KALLARA, THIRUVANANTHAPURAM-695608.
2ASHRAF ALI KINJU
AGED 67 YEARS
S/O ALI KUNJU,
CHARUVILA PUTHENVEEDU,
KURUMBAYAM P.O, KALLARA, THIRUVANANTHAPURAM-695608.
BY ADVS.
N.ANAND (KAR/1414/2008)-11256
BIJITH S.KHAN
APARNA UDAYAKUMAR

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RESPONDENT/S:

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HASEENA.S.
AGED 32 YEARS
D/O SHAHIDA BEEVI,
KANNIYAZHIKALAM VEEDU, THEKKUMBHAGAM CHERIYIL,
KOTTAPPURA, PARAVOOR, KOLLAM-691301.

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BY ADV M.R.SASITH

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THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17.06.2022 ALONG WITH TRPC NOS 86 AND 99 OF 2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Tr.P (C) Nos. 86,99 & 295 of 2021

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C.S DIAS,J.

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--------------------------Tr.P (C) Nos. 86,99 & 295 of 2021

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----------------------------Dated this the 17^th day of June, 2022.

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ORDER

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As the transfer petitions are between the husband and wife and the father of the husband, they are being disposed of by this common order.

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Tr.P(C) 295/2021 is filed by the husband and

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father, seeking to transfer OP 1432/2020 filed by the wife, from the Family Court, Kollam to the Family Court, Nedumangad. Tr.P(C)Nos.86 and 99 of 2021

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are filed by the wife, seeking to transfer of OP Nos.1282 and 1295 of 2020, filed by the husband, from the Family Court, Nedumangad to the Family Court, Kollam. The parties are, for the sake of convenience, referred to as per their status and the pleadings in Tr.P(C) No.295/2021, as it is the most comprehensive transfer petition.

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Tr.P (C) Nos. 86,99 & 295 of 2021

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The petitioners’ case in Tr.P (C)295/2021 is that, the respondent is the wife of the first petitioner. The second petitioner is the father of the first petitioner. The first petitioner and the respondent have four daughters born in their wedlock. Due to the estrangement in marital relationship, the respondent has filed OP 1432/2020 (Annexure 1) against the petitioners, before the Family Court, Kollam, seeking a decree for return of money and gold ornaments. The first petitioner has filed OP Nos.1282 and 1295 of 2020, (Annexures 2 and 3), against the respondent, before the Family Court, Nedumangad, seeking an order for the permanent custody of the children and a decree for restitution of conjugal rights. The distance between Nedumangad and Kollam is 67 kms. As the first petitioner has to discharge his duties as an Imam and his father is old and infirm, it would be convenient

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Tr.P (C) Nos. 86,99 & 295 of 2021

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if Annexures 2 and 3 are transferred from the Family Court, Kollam to the Family Court, Nedumangad.

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The respondent has filed Tr.P(C)Nos.86 and 99 of 2021, seeking to transfer Annexures 2 and 3 to the Family Court, Kollam. It is her case that she and four daughters are residing in her parental home at Paravoor. It would be extremely difficult for her to travel all the way from Paravoor to Nedumangad and contest Annexure 1. Moreover, she and the children are in vagrancy. There is no person to chaperone them from Paravoor to Nedumangad. Hence, considering the comparative hardship, preference may be given to the respondent. Hence, the transfer petitions may be allowed.

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Heard; Sri.N.Anand, the learned counsel appearing for the petitioners in Tr.P(C)No.295/2021 and Sri.M.R Sasith Panicker, the learned counsel appearing for the respondent in Tr.P(C)No.295/2021.

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Tr.P (C) Nos. 86,99 & 295 of 2021

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The law with respect to transfer of

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proceedings, particularly matrimonial disputes, is no longer res-integra, in view of the categoric declaration of law by the Hon'ble Supreme Court in Sumitha Sing V. Kumar Sanjay and another [2002 KHC 1889], Mona Aresh Goel V. Aresh Satya Goel [2000 KHC 1835], Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap [2016 KHC 6489] and Santhini V. Vijaya Venkatesh [2017 (5) KHC 48]. The Hon’ble Supreme Court has held that it is the convenience of the woman and children that has to be looked into,

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while ordering the transfer of a case from one Court to another.

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Going by the pleadings and materials on record, it is undisputed that the first petitioner and respondent have four children born in their wedlock, who are aged 11,9, 7 and 5 years, respectively. They

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are in the permanent custody of the respondent. The

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Tr.P (C) Nos. 86,99 & 295 of 2021

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first petitioner is aged only 37 years. He is residing within the distance of 67 kms from the Family Court, Kollam. On a consideration of the comparative hardship of the first petitioner and the respondent, I am of the firm view that comparative hardship of the respondent and children has to be given due preference. Moreover, if all the cases are consolidated and jointly tried before the same Court, it would save precious judicial time and avoid conflict of decisions. Therefore, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure and allow Tr.P(C)Nos.86 and 99 of 2021 by ordering the transfer of Annexures 2 and 3. Consequently, I am not inclined to transfer Annexure 1. In the result, the following orders are passed:

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(i) Tr.P(C) No.295/2021 is dismissed. (ii) Tr.P(C) No.86/2021 is allowed by ordering the transfer of O.P No.1282/2020 from the Family Court, Nedumangad to the Family Court, Kollam.

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Tr.P (C) Nos. 86,99 & 295 of 2021

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(iii) Tr.P (C) No.99/2021 is allowed by ordering the transfer of O.P No.1295/2021 from the Family Court, Nedumangad to the Family Court, Kollam.

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(iv) The parties would be at liberty to move the Family Court, Kollam, and seek for consolidation and joint trial of all the cases between them.

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(v) The petitioners would be at liberty to seek for dispensation of the personal appearance of the second petitioner.

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(vi) The Registry shall forward a copy of this judgment to the Family Court, Nedumangad, with instructions to forward the records in Annexures 2 and 3 to the Family Court, Kollam.

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(vii) The parties are directed to mark their appearance either in person or through their Counsel before the Family Court, Kollam on 1.8.2022.

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(viii)If the first petitioner files any application seeking interim custody of the children, the same shall be considered, as expeditiously as possible.

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Tr.P (C) Nos. 86,99 & 295 of 2021

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(ix) The Family Court, Kollam, is directed to call

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Annexures 2 and 3 along with OP 1432/2020 on

1.8.2022.

sd/-

sks/17.06.2022

C.S.DIAS, JUDGE

Tr.P (C) Nos. 86,99 & 295 of 2021

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The lower court case number shown as ‘OP No.1432 of 2020’ is corrected as ‘OP No.1342 of 2020’, wherever it occurs in the Final Order (Common order) dated 17.6.2022 in Tr.P(C)Nos.86/2021, 99/2021 and 295/2021, as per order dated 31.8.2022 in IA No.1/2022 in Tr.P(C)No.295/2021.

Sd/-

Joint Registrar

Tr.P (C) Nos. 86,99 & 295 of 2021

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APPENDIX OF TR.P(C) 86/2021

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PETITIONER ANNEXURES
ANNEXURE A1TRUE COPY OF OP 1432/20 FILED BY
PETITIONER BEFORE THE HON’BLE FAMILY
COURT, KOLLAM.
ANNEXURE A2TRUE COPY OF OP 1282/20 FIELD BY
RESPONDENT BEFORE THE HON’BLE FAMILY
COURT, NEDUMANGAD.

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Tr.P (C) Nos. 86,99 & 295 of 2021

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APPENDIX OF TR.P(C) 99/2021

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PETITIONER ANNEXURES
ANNEXURE A1TRUE COPY OF OP 1432/20 FILED BY
PETITIONER BEFORE THE HON'BLE FAMILY
COURT, KOLLAM.
ANNEXURE A2TRUE COPY OF OP 1295/20 FILED BY
RESPONDENT BEFORE THE HON'BLE FAMILY
COURT, NEDUMANGAD.
ANNEXURE A3NOTICE FOR SUMMONS BEFORE FAMILY COURT,
NEDUMANGAD IN OP 1295/2020.

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Tr.P (C) Nos. 86,99 & 295 of 2021

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APPENDIX OF TR.P(C) 295/2021

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`PETITIONE`	`R ANNE`	`XURES`
`ANNEXURE`	`1`	`TRUE` `RESPO` `COURT`	`COPY` `NDENT` `, KOL`	`OF OP 1432/20 FILED BY` `BEFORE THE HON'BLE FAMILY` `LAM.`
`ANNEXURE`	`2`	`TRUE` `PETIT` `CHILD`	`COPY` `IONER` `REN`	`OF OP 1282/20 FILED BY THE` `FOR PERMANENT CUSTODY OF`
`ANNEXURE`	`3`	`TRUE` `PETIT` `RIGHT`	`COPY` `IONER` `S`	`OF OP 1295/20 FILED BY THE` `FOR RESTITUTION OF CONJUGAL`
		`TRUE`	`COPY`	`OF THE DISTANCE MAP BETWEEN`
`ANNEXURE`	`4`	`NEDUM`	`ANGAD`	`AND FAMILY COURT, KOLLAM`

Haseena S., v. Shameer Khan a.

Case brief

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Haseena S., v. Shameer Khan a.

Case brief

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