Allowed

Divya Jose v. Steaphen Antony Venansious

Kerala HC24 Jul 2023Tr.Appeal(C)/6/2023

Case brief

AI extract

What is this about?

Transfer Appeals by spouses and child against order transferring divorce and guardianship petitions from Family Court, Pala to Alappuzha. Court modified transfer to Family Court, Irinjalakuda to balance safety and convenience.

What did the court decide?

Orders transferring divorce and wards petitions from Family Court, Pala to Family Court, Alappuzha quashed; directive to transfer to Family Court, Irinjalakuda.

Divya Jose Vs Steaphen Antony Venansious — Child Custody and Guardianship | Kerala HC (2023)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 24^TH DAY OF JULY 2023 / 2ND SRAVANA, 1945 TR.APPEAL(C) NO. 6 OF 2023

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AGAINST THE ORDER DATED 14.06.2023 IN Tr.P(C) NO.169 OF 2023 OF THE HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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DIVYA JOSE

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AGED 29 YEARS, D/O JOSE JOSEPH, PANAMKUNNEL HOUSE, NEAR BSNL EXCHANGE, VALAVOOR, VALAVOOR P.O, KOTTAYAM DISTRICT -686635 NOW RESIDING AT H064, BLOCK -4 DLF NTH, SEAPORT-ARIPORT ROAD, KAKKANAD - 682037, PIN – 682037.

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BY ADV ANITHA MATHAI MUTHIRENTHY

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RESPONDENT/RESPONDENT:

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STEAPHEN ANTONY VENANSIOUS AGED 37 YEARS, S/O JOHNY NICOLAS VENANSIOUS, I.T. PROFESSIONAL, RESIDING AT APARTMENT 19B, GOLD TOWER, 1/144, CHEMBUMUKKU, VAZHAKKALA, KOCHI - 682030 AND HAVING PERMANENT RESIDENCE AT 'MARY MAJOR', MWRA NO. 43, OPPOSITE COLLECTOR'S BUNGALOW, MUNDAKKAL WEST, KOLLAM CITY, KOLLAM – 691001.

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BY ADVS. SHAIJAN C.GEORGE VINAI JOHN HASHMI V.Z. SUJITHA S.

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Transfer Appeal (C) Nos.6 and 7 of 2023

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THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2023, ALONG WITH Tr.Appeal(C).7/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Transfer Appeal (C) Nos.6 and 7 of 2023

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 24^TH DAY OF JULY 2023 / 2ND SRAVANA, 1945 TR.APPEAL(C) NO. 7 OF 2023

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AGAINST THE ORDER DATED 14.06.2023 IN Tr.P(C) 166 OF 2023 OF THE HIGH COURT OF KERALA

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APPELLANTS/PETITIONERS/RESPONDENTS:

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1 DIVYA JOSE, AGED 29 YEARS, D/O JOSE JOSEPH, PANAMKUNNEL HOUSE, NEAR BSNL EXCHANGE, VALAVOOR, VALAVOOR P.O, KOTTAYAM DISTRICT -686635 NOW RESIDING AT H064, BLOCK -4 DLF NTH, SEAPORT-ARIPORT ROAD, KAKKANAD - 682037.

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2 BETTY JOSE, AGED 58 YEARS, W/O JOSE JOSEPH, PANAMKUNNEL HOUSE, NEAR BSNL EXCHANGE, VALAVOOR, VALAVOOR P.O, KOTTAYAM DISTRICT -686635.

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3 JOSE JOSEPH, AGED 62 YEARS, S/O JOSEPH PANAMKUNNEL, PANAMKUNNEL HOUSE, NEAR BSNL EXCHANGE, VALAVOOR, VALAVOOR P.O, KOTTAYAM DISTRICT -686635.

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BY ADV ANITHA MATHAI MUTHIRENTHY

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Transfer Appeal (C) Nos.6 and 7 of 2023

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RESPONDENTS/RESPONDENTS/PETITIONERS:

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1 STEAPHEN ANTONY VENANSIOUS

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AGED 37 YEARS, S/O JOHNY NICOLAS VENANSIOUS, I.T. PROFESSIONAL, RESIDING AT APARTMENT 19B, GOLD TOWER, 1/144, CHEMBUMUKKU, VAZHAKKALA, KOCHI - 682030 AND HAVING PERMANENT RESIDENCE AT 'MARY MAJOR', MWRA NO. 43, OPPOSITE COLLECTOR'S BUNGALOW, MUNDAKKAL WEST, KOLLAM CITY, KOLLAM - 691001.

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2 JOHNY NICOLAS VENANSIOUS

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AGED 72 YEARS, S/O JOHNY NICOLAS, RESIDING AT 'MARY MAJOR', MWRA NO. 43, OPPOSITE COLLECTOR'S BUNGALOW, MUNDAKKAL WEST, KOLLAM CITY, KOLLAM, PIN – 691001.

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3 KAMEELA VENANSIOUS AGED 64 YEARS, W/O JOHNY NICOLAS VENANSIOUS, RESIDING AT 'MARY MAJOR', MWRA NO. 43, OPPOSITE COLLECTOR'S BUNGALOW, MUNDAKKAL WEST, KOLLAM CITY, KOLLAM, PIN – 691001.

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BY ADVS. SHAIJAN C.GEORGE VINAI JOHN HASHMI V.Z. SUJITHA S.

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THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2023, ALONG WITH Tr.Appeal(C).6/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Transfer Appeal (C) Nos.6 and 7 of 2023

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JUDGMENT

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P.G. Ajithkumar, J.

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The petitioners in Transfer Petition (C) Nos.16 and 169 of 2023 have filed these appeals under Section 5 of the Kerala High Courts Act, 1957. They are aggrieved of the order of the learned Single Judge by which O.P.(Divorce) No.724 of 2022 and O.P.(G&W) No.591 of 2022 on the files of the Family Court, Pala was transferred to the Family Court, Alappuzha.

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Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents.

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The appellant-Divya Jose is the wife and the respondent-Steaphen Antony Venansious is the husband. They have a child. Following estrangement in the marital life, the respondent filed O.P.(Divorce) No.724 of 2022 before the Family Court, Pala on the ground of cruelty. It was also alleged that the marriage was a nullity. O.P.(G&W) No.591 of 2022 was filed by the 1^st respondent along with his parents seeking custody of the 11 (eleven) months old child. That was

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6 Transfer Appeal (C) Nos.6 and 7 of 2023

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also filed before the Family Court, Pala. The appellant filed Transfer Petition (C) No.169 of 2023 seeking transfer of O.P. (Div) No.724 of 2022 and Transfer Petition (C) No.166 of 2023 for the transfer of O.P.(G&W) No.591 of 2022 from Family Court, Pala to Family Court, Ernakulam. In both, the reasons stated for the transfer is that the appellant-wife is residing at Ernakulam and her traveling to Pala along with her child of tender age to attend the court proceedings at frequent intervals is quite inconvenient.

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The respondent-husband vehemently resisted the petitions for transfer, to the Family Court, Ernakulam particularly. Several reasons have been stated to object to the transfer. It was contended that he is now working at Bangalore and therefore transferring the cases to Family Court, Ernakulam, where he has no interest or place of abode is inconvenient. Further, his father-in-law brutally manhandled him and as such transferring the case to the Family Court at Ernakulam where the appellant and his parents are residing will pose threat to his safety and security. The respondent

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Transfer Appeal (C) Nos.6 and 7 of 2023

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even alleged that the counsel of the appellants, who is practicing at Ernakulam also has illwill against him. The learned Single Judge after hearing both sides transferred both the cases from Family Court, Pala to Family Court, Alappuzha by holding as follows:-

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“3. At the fag end of the argument, the learned counsel for the respondent fairly submitted that the case can be transferred to any other court either at Alappuzha or at any court convenient to the parties except the court at Ernakulam. The apprehension is found to be well placed and as such, both the cases pending before the Family Court, Pala will stand withdrawn and transferred to the Family Court at Alappuzha. Send the records forthwith. The parties shall appear before the Court at Alappuzha, the transferee court on 30/06/2023.”

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On 06.07.2023, the learned counsel appearing for the appellants sought time stating that the objection filed by the respondents in the Transfer Petitions were omitted to be incorporated along with the memorandum of appeals.

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On 11.07.2023, the learned counsel appearing for

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the appellants submitted that having the transfer petitions

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8 Transfer Appeal (C) Nos.6 and 7 of 2023

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been disposed of soon after filing of the counter-affidavit by the respondents, the appellant could not file a reply-affidavit. On that ground the appellant sought time so as to file an affidavit. The appellants have filed affidavits in both these appeals producing therewith Exts.B1 to B7. In the affidavit a few fresh contentions and allegations are raised by the appellants.

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During the course of arguments the learned counsel for the appellants would submit that the respondents did not contend earlier that he was working at Bangalore and that his apprehension and fear of coming over to Ernakulam to attend the Family Court is without any basis. In fact, it is the respondent, who was posing threat to the safety of the appellants and even the child. Therefore, the learned counsel would urge that the order of the learned Single Judge transferring the original petitions to the Family Court, Alappuzha is incorrect. It is also submitted that the appellants travelling to Alappuzha along with 11 months old child is quite difficult and therefore the impugned orders require interference.

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Transfer Appeal (C) Nos.6 and 7 of 2023

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The learned counsel appearing for the respondents, per contra, would submit that there is absolutely no reason for transferring the original petitions from Family Court, Pala and even if transferred, it cannot be to the Family Court, Ernakulam. The learned counsel would point out that as a result of the physical attack by his father-in-law he had to undergo treatment as an inpatient. In the view of the learned counsel for the respondents, if the respondents were to attend the Family Court at Ernakulam there is every possibility of even physical attack by his father-in-law, who is a resident of Ernakulam, with the aid of his henchmen.

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We have anxiously considered the rival contentions. In the matter of deciding the request for a transfer, the allegations and counter allegations raised by the parties have no much relevance. The apprehension raised by the respondent-husband that there is possibility of physical attack by his father-in-law and his men has some basis; since there was an earlier incident where he was allegedly manhandled by his father-in-law. Certainly, the convenience of the wife has to

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10 Transfer Appeal (C) Nos.6 and 7 of 2023

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be given predominance while selecting a court for the trial of matrimonial litigations between the spouses. However, in the facts and circumstances of these cases as are borne out from the records, it is required in the interest of justice to avoid transfer of the petitions to the Family Court at Ernakulam. Transferring the cases to Family Court, Alappuzha is inconvenient to both parties. When it is totally inconvenient for the appellant, who sought transfer of the cases, it is only appropriate to alter the said order. We are of the view that both O.P.(Divorce) No.724 of 2022 and O.P.(G&W) No.591 of 2022 shall be transferred to the Family Court, Irinjalakuda. By transferring the cases to the Family Court, Irinjalakuda, the comparative inconvenience to both the parties, particularly to the wife will be less.

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In the result, the appeals are disposed of and the order dated 14.06.2023 in Transfer Petition (C) Nos.166 and 169 of 2023 are modified. O.P.(Divorce) No.724 of 2022 and O.P. (G&W) No.591 of 2022 on the files of the Family Court, Pala are transferred to the Family Court, Irinjalakuda. The Family

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Transfer Appeal (C) Nos.6 and 7 of 2023

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Court, Pala is directed to transmit the records to the Family

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Court, Irinjalakuda.

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Sd/ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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dkr

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Transfer Appeal (C) Nos.6 and 7 of 2023

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APPENDIX OF TR.APPEAL(C) 6/2023

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PETITIONER ANNEXURES

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ANNEXURE A1	A TRUE COPY OF DATED 8.3.2022	THE DISCHARGE SUMMARY
ANNEXURE A2	A TRUE COPY OF	THE COMPLAINT DATED
	20.12.2022 FILED HER PARENTS	BY THE APPELLANT AND
ANNEXURE A3	A TRUE COPY OF THE	ORDER DATED 24.9.2022
ANNEXURE A4	A TRUE COPY OF THE	ORDER DATED 10.3.2022
ANNEXURE A5	A TRUE COPY OF T 09.03.2023 FILED COURT	R.P(C) 169/2022 DATED BEFORE THIS HON'BLE
ANNEXURE B1	A TRUE COPY OF	THE DISCHARGE SUMMARY
	DATED 8.3.2022 HOSPITAL	ISSUED BY LAKESHORE
ANNEXURE B2	A TRUE COPY OF 20.12.2022 FILED BEFORE THE SHO, PA	THE COMPLAINT DATED BY THE APPELLANTS LA
ANNEXURE B4	A TRUE COPY OF OP(GW) 591/2022	THE IA NO.7/2023 IN
ANNEXURE B3	A TRUE COPY OF THE IN TR.P(C) 166/202	ORDER DATED 10.3.2023 3
ANNEXURE B5	A TRUE COPY OF THE IN TR.P (C) 166/20	ORDER DATED 11.4.2023 23
ANNEXURE B6	A TRUE COPY OF TH IN IA 5/2022 IN OP	E ORDER DATED 3.6.2023 (GW) 591/2022
ANNEXURE B7	A TRUE COPY OF TH IN OPFC NO. 386/2 HIGH COURT OF KERA	E ORDER DATED 5.7.2023 023 OF THE HONOURABLE LA

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Transfer Appeal (C) Nos.6 and 7 of 2023

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APPENDIX OF TR.APPEAL(C) 7/2023 PETITIONER ANNEXURES

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ANNEXURE A1 A TRUE COPY OF THE DISCHARGE SUMMARY DATED 8.3.2022 ISSUED BY VPS LAKESHORE HOSPITAL, ERNAKULAM ANNEXURE A2 A TRUE COPY OF THE COMPLAINT DATED 20.12.2022 FILED BY THE APPELLANTS BEFORE SHO, PALA POLICE STATION. ANNEXURE A3 A TRUE COPY OF THE ORDER DATED 24.9.2022 IN IA 1/22 IN OP 591/22 ANNEXURE A4 A TRUE COPY OF THE ORDER DATED 10.3.2023 IN TR.P(C) 166/2023 ANNEXURE B1 A TRUE COPY OF THE DISCHARGE SUMMARY DATED 8.3.2022 ISSUED BY LAKESHORE HOSPITAL ANNEXURE B2 A TRUE COPY OF THE COMPLAINT DATED 20.12.2022 FILED BY THE APPELLANTS BEFORE THE SHO, PALA ANNEXURE B4 A TRUE COPY OF THE IA NO.7/2023 IN OP(GW) 591/2022 ANNEXURE B6 A TRUE COPY OF THE ORDER DATED 3.6.2023 IN IA 5/2022 IN OP(GW) 591/2022 ANNEXURE B3 A TRUE COPY OF THE ORDER DATED 10.3.2023 IN TR.P(C) 166/2023 ANNEXURE B5 A TRUE COPY OF THE ORDER DATED 11.4.2023 IN TR.P (C) 166/2023 ANNEXURE B7 A TRUE COPY OF THE ORDER DATED 5.7.2023 IN OP(FC) NO. 386/2023 OF THE HONOURABLE HIGH COURT OF KERALA

Divya Jose v. Steaphen Antony Venansious

Case brief

What is this about?

What did the court decide?

Divya Jose v. Steaphen Antony Venansious

Case brief

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