IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 239 of 2009()
1. CHANDRAPRABHA, AGED 23 YEARS,
... Petitioner
2. ANUSREE, AGED 2 YEARS,
Vs
1. SHYJU, AGED 36 YEARS, VILAYIL HOUSE,
... Respondent
2. RADHA, WIFE OF GOPI, VILAYIL HOUSE,
3. SINDHU, DAUGHTER OF RADHA,
4. GOPI, SON OF GOVINDAN,
For Petitioner :SRI.ALAN PAPALI
For Respondent :SRI.LATHEESH SEBASTIAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :20/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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Tr.P.(C).Nos. 239 AND 296 OF 2009
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Dated this the 20th day of November 2009
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ORDER
Both these petitions are filed under Section 24 of
the Code of Civil Procedure. Transfer petition No. 296 of
2009 is filed by the two petitioners, the husband and child,
as against the wife and her close relatives. O.P Transfer
petition No. 239 of 2009 is also filed by two petitioners, the
wife and the child against her husband and also three
others, her close relatives. Second petitioner in both the
petitions is common, the child aged two years, born out of
the wedlock of the spouses. In respect of the child, for its
custody, rival claims have been set up by the father and
mother initiating proceedings in two different Family Courts.
The husband has filed O.P No.828/2009 before the Family
Court, Nedumangad for the custody of the child under the
provisions of the Guardian and Wards Act 1890. Similarly,
wife has filed O.P No. 630/2009 for the custody of the minor
Tr.P.(C).Nos. 239 AND 296 OF 2009 Page numbers
child before the Family Court, Kottarakara. She has also
filed another petition before the very same Family Court as
O.P No.626/2009 against the husband for the return of her
ornaments, valuables etc. Husband seeks transfer of both
the above petitions to the Family Court, Nedumangad where
the petition filed by him as O.P No. 828/2009 is pending
consideration. Wife has filed the other transfer petition
seeking transfer of the petition O.P No. 828/2009 from the
Family Court, Nedumangad to the Family Court, Kottarakara
where two petitions filed by her are pending.
2. Both parties were referred to mediation to see
whether there is another chance of settlement. But the
mediation has failed, and the report informing its failure has
been presented before this court.
3. So far as the transfer of the proceedings under
the Guardian and Wards Act when rival claims are raised by
the spouses to get the custody of the child, I find, primarily
Tr.P.(C).Nos. 239 AND 296 OF 2009 Page numbers
the question of jurisdiction of the court concerned to
entertain such a petition under the Guardian and Wards Act
with reference to Section 9 of that Act has to be resolved
and it will not be proper and appropriate for this court to
pass any order of transfer from one court to another as
desired by the parties in their respective petitions. It is open
to the parties to move application before the Family Court
requesting for an adjudication on the question of jurisdiction
before proceeding with the trial of the petitions to have a
determination which family court is having jurisdiction to
entertain a proceeding under the Guardian and Wards Act in
respect of the ward. That being so, I find the transfer
petition filed by the wife as O.P No. 239/2009 has to be
closed reserving her right to challenge the jurisdiction of the
Family Court, Nedumangad to entertain a petition in respect
of the second petitioner, minor child before that court, if so
advised. The case canvassed by the husband for transfer of
the petitions filed by the wife from the Family Court,
Kottarakara to the Family Court, Nedumangad is primarily
Tr.P.(C).Nos. 239 AND 296 OF 2009 Page numbers
built upon his physical ailments. He is physically
handicapped and so much so, it is practically impossible for
him to reach the Family Court, Kottarakara without being put
to severe inconvenience and difficulties is the case of the
husband. The learned counsel for the husband would
contend further that only the Family Court, Nedumangad has
jurisdiction to entertain the petitions filed by the wife before
the Family Court, Kottarakara. With respect to that
question, it may not be proper for this court to express any
opinion as that is a matter to be canvassed before the
Family Court for consideration and decision, presenting all
facts necessary to establish that court has no jurisdiction to
entertain the petition. In a matrimonial proceeding,
needless to point out the convenience of the wife has to be
given preference in the matter of transfer of the proceeding
from one Family Court to another. True, the physically
handicap of the husband, which is canvassed deserves to be
taken note of where there is justifiable ground for transfer of
the petition filed by the wife in one Family Court to another
Tr.P.(C).Nos. 239 AND 296 OF 2009 Page numbers
as desired by the husband. In the given facts of the case, it
is seen that the two year old minor child is presently under
the custody of the husband. So far as an infant is concerned
at least during the stage of infancy, its custody with the
mother may be required for its well being, both physically
and mentally. A mother already deprived of the custody of
the child is asked to defend a prosecution at a Family Court
which is situate at a considerable distance away from her
present place of residence. The learned counsel for the wife
submits that presently the wife is residing with her maternal
uncle at Kadakkal. Naturally in view of the estrangement of
the spouses to prosecute her case which she has filed before
the Family Court, Kottarakara she has to depend upon one
or other of her close relatives. Weighing the hardship and
inconvenience to be suffered by the respective parties, I find
this court cannot be oblivious to the difficulties that are
likely to be faced by the wife if she is compelled
to go over to Nedumangad against her wishes to
prosecute the petition which she had already presented
Tr.P.(C).Nos. 239 AND 296 OF 2009 Page numbers
before the Family Court, Kottarakara. In case the husband
has a case that Family Court, Kottarakara has no jurisdiction
to entertain the petition presented by her before that court,
It is open to him to take appropriate steps for determination
of the question of jurisdiction seeking appropriate orders
thereof. On the facts presented, I find, on the ground that
the husband is a physically handicapped person, it will not
be proper nor correct to transfer the petition filed by the
wife to the Family Court, Nedumangad as desired by him.
Both the transfer petitions are disposed as indicated above.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv
Tr.P.(C).Nos. 239 AND 296 OF 2009 Page numbers