Lalitha And Ors vs Ambily R.B And Ors

P.V. Kunhikrishnan, J

This appeal is filed against the order dated 06.03.2020 in Tr.P.(c) No.854/2019. The appellants are the 2nd and 3rd respondents in O.P.

No.1217/2019 on the file of the Family Court, Pathanamthitta. The first appellant is the mother of the 2nd appellant and the 2nd respondent herein.

The 1st respondent is the wife of the 2nd respondent. The 1st respondent filed O.P. No.1217/2019 before the Family Court, Pathanamthitta for

recovery of the value of her gold and share of properties, which was allegedly misappropriated by the appellants and the 2nd respondent. The 1st

respondent is employed as a court staff at Adoor in the territorial jurisdiction of Pathanamthitta Family Court. The 2nd respondent married the 1st

respondent on 12.1.2012. A girl child was born in the of wedlock and she is now in the custody of the 1st respondent. According to the appellants, the

1st respondent deserted her husband and left her matrimonial home on 15.11.2018. The 2nd respondent then filed OP(HMA) No.543/2019 on

04.07.2019 before the Family Court, Chavara seeking divorce.

On receiving notice in the above divorce proceedings, it is alleged that the 1st respondent with the aid of her brother working in the Police

Department foisted a case against the husband alleging dowry harassment. When there was a threat on 26.8.2019 that the 1st respondent would

forcefully trespass into the residential house of the 1st appellant, the 1st appellant filed O.P. No. 727/2019 on 31.08.2019 before the Family Court,

Chavara. The 1st respondent also filed M.C.No. 23/2019 before the Judicial First Class Magistrate Court, Sasthamcotta seeking a residence order, but

the learned Magistrate refused to grant the residence order. Thereafter on 15.11.2019, the 1st respondent filed O.P. No.1217/2019 seeking recovery

of money to the tune of Rs.31,89,000/- on the ground that the same was the value of gold and her share alleged to be misappropriated by the

appellants and the 2nd respondent.

It is submitted by the appellants that the 1st appellant is aged 62 and is suffering from serious old age ailments and hence, she is not able to travel to

Pathanamthitta. It is also submitted that the 2nd appellant has got small kids and she is also not in a position to travel up to Pathanamthitta. The

husband of the 2nd appellant is out of station in connection with his job. Moreover, it is also submitted by the appellants that they are not having the

financial capacity to conduct the case by travelling a distance of about 30 km to Pathanamthitta. There is no direct bus service to Pathanamthitta from

the residence of the appellants. Hence, the appellants filed a transfer petition before this Court to transfer O.P.No.1217/2019 pending before the

Family Court, Pathanamthitta to the Family Court, Chavara.

Along with the above transfer petition, two other transfer petitions were also considered. Tr.P (C) Nos. 58/2020 and 67/2020 were filed by the

wife, who is the 1st respondent herein for transferring O.P.No.543/2019 and O.P.No.727/2019 on the file of the Family Court, Chavara to the Family

Court, Pathanamthitta.

All the three transfer petitions were considered together and the learned single Judge allowed transfer petition (C) Nos.58/2020 and 67/2020. But

Tr.P.(C.) No. 854/2019 filed by the appellants was dismissed. Aggrieved by the same, this transfer appeal is filed.

Heard the counsel for the appellant and the counsel for the respondents.

The counsel for the appellants submitted that the 1st appellant is an aged lady and is not in a position to travel from her place at Sasthamcotta to

Pathanamthitta to conduct O.P.No.1217/2019. According to the appellants, the 2nd respondent, who is the son of the 1st appellant is not in good terms

with them. The counsel submitted that O.P.No.1217/2019 was filed after the filing of the OP (HMA) No.543/2019 and O.P.No.727/2019 before the

Family Court, Chavara. The intention of the 1st respondent is only to harass the appellants. According to the appellants, the 1st respondent is

employed at Adoor and her child is with her parents. The counsel submitted that as far as the 2nd appellant is concerned, her husband is in Gulf, and 2

small kids are there with the 2nd appellant. The 1st appellant is facing old age illness. In such circumstances, the appellants are not in a position to

travel from their residence at Kottarakkara to Pathanamthitta to conduct the case.

The counsel for the 1st respondent submitted that she has to look after her child and there is no direct bus from her place of residence to Chavara.

The counsel submitted that if the case is transferred to Family Court, Chavara, there will be a lot of inconvenience to the 1st respondent. The 1st

respondent supported the impugned order in this appeal.

This transfer appeal (C) came up for consideration along with transfer appeal (C) No.10/2020 on 11.2.2021. The transfer appeal (C) No.10/2020

was filed against the order dated 6.3.2020 in Tr.P.C. no.67/2020 by which O.P.No.727/2019 on the file of the Family Court, Chavara is transferred to

Pathanamthitta. The counsel for the appellants submitted on 11.2.2021 that O.P. No. 727/2019 is already withdrawn and transfer appeal (C) No.

10/2020 has become infructuous. Accordingly, transfer appeal (C) No. 10/2020 is dismissed as infructuous. The counsel also submitted that the

divorce petition is also withdrawn from the Family Court. Therefore, what remains is only O.P. No.1217/2019 now pending before the Family Court,

Pathanamthitta.

The learned single Judge dismissed the transfer petition of the appellants to transfer O.P.No.1217/2019 from Family Court, Pathanamthitta to the

Family Court, Chavara mainly for the reason that the 1st respondent is employed at Adoor and she has got a child. The learned single Judge declined

the transfer to protect the interest of the child, who is admittedly with the 1st respondent.

The main contention of the appellants is that the learned single Judge erred in not considering the comparative hardship of the parties involved in

the litigation. According to the appellants, the learned single Judge only considered the fact that the 1st respondent-wife is having a child now residing

with her. But the counsel submitted that in the connected transfer petition, the 1st respondent admitted that the child is studying at Kendriya Vidyalaya,

Adoor. According to the appellants, the child is with the parents of the 1st respondent. The 1st respondent only used to occasionally reside at her

house at Pazhakulam where her parents are residing with the child. Therefore, the appellants contended that since the child is with the grandparents,

there is no difficulty to the 1st respondent to attend the Family Court at Chavara. The counsel also submitted that in the other two cases which were

pending before the Family Court, Chavara, the 1st respondent regularly appeared and she participated in the mediation also. The appellants contend

that the 1st respondent is an employee in court and she is a person who regularly travels to her workplace. The sum and substance of the argument is

that when comparing the 1st respondent's case, the 2nd appellant herein also has two children and the younger one is less than one year old. This

aspect is not considered by the learned single Judge.

According to us, there is some force in this argument. The main ground to reject the transfer petition by the learned single Judge is to protect the

interest of the child of the 1st respondent. From the pleadings of the 1st respondent, it has to be presumed that the child is with her parents. Moreover,

the 1st respondent is working as a civil judicial subordinate staff. The 1st appellant is a widow and a senior citizen. It is also to be noted that the first

litigation was instituted by the 1st appellant at Chavara seeking an injunction. The 1st respondent herein appeared before the Family Court, Chavara,

and contested the matter after filing an objection to the said proceedings. In such circumstances, there will not be any difficulty for the 1st respondent

to participate in the proceedings, if the case is transferred to the Family Court, Chavara. The 1st appellant is an old lady and the 2nd appellant is the

daughter of the 1st appellant. There are two small kids to the 2nd appellant. There can be a direction to the lower court not to insist on the personal

appearance of the 1st respondent on all days except, the days on which her appearance is inevitable. The 1st respondent can be allowed to appear

through counsel. In the facts and circumstances of the case, according to us, the learned single judge erred in dismissing the transfer petition.

Therefore, this transfer appeal is allowed in the following manner :

1) The order dated 6.3.2020 in Tr.P.(C) No. 854/2019 is set aside.

2) O.P.No. 1217/2019 pending before the Family Court, Pathanamthitta is transferred to Family Court, Chavara. The case records shall be transmitted

to the transferee court, forthwith.

3) The transferee court shall not insist on the personal appearance of the 1st respondent on all posting days except, on the dates on which her personal

appearance is inevitable. On all other posting dates, the transferee court will allow the 1st respondent to appear through counsel.

4) The parties shall appear before the transferee court on 8.3.2021. The transferee Court will take every endeavour to dispose of the case as

expeditiously as possible.