Ker HC | In matrimonial matters preference is to be given to convenience and welfare of children over wife; HC dismisses application for transfer of case

Kerala High Court: While deciding an application for transfer of two cases from one jurisdiction to another, R. Narayana Pisharadi, J., disposed of the same finding no reason to pass an order to that effect.

The factual matrix in the present case is that the respondent has filed O.P. No. 460 of 2019 against the first petitioner in the family court, Muvattupuzha for restitution of conjugal rights. The respondent has filed another O.P. No. 662 of 2019 against the petitioners in the same court seeking guardianship and permanent custody of the two minor children.

The present application has been filed by the petitioners to transfer the above mentioned two cases from the family court, Muvattupuzha to the family court, Thrissur.

The following grounds have been set forth by the petitioner for transfer of the cases: (1) The family court, Muvattupuzha has got no jurisdiction to entertain

and try the case O.P. No. 662 of 2019 and it should’ve been filed before the Family Court, Thrissur. (2) The first petitioner has filed a case as M.C.No.639 of 2019 against the respondent under Section 125 CrPC in the family court, Thrissur claiming maintenance for the two minor children. Consolidation of the two cases pending in the family court, Muvattupuzha and the case M.C.No. 639 of 2019 pending in the family court, Thrissur is necessary. (3) The first petitioner and her parents are residing at Thrissur. The convenience of the wife and the children has to be given preference in matrimonial matters.

With reference to the contention that family court, Muvattupuzha lacks jurisdiction, the Court observed that the said contention is irrelevant as it should have been raised before that family court itself. It requires consideration of disputed facts which can be done by the family court and not this Court.

The Court also observed that just because of the fact that first petitioner has instituted a case as M.C.No.639 of 2019 in the family court, Thrissur is also not a sufficient ground to transfer the other two cases pending in the family court, Muvattupuzha to the family court, Thrissur.

While deliberating over the principle generally followed that in applications for transfer of cases relating to matrimonial matters, the convenience of the wife has to be given preference; the Court observed that in the present matter preference has to be given to the convenience and welfare of the children.

Counsel for the respondent, Biju Abraham has submitted that currently children are in the custody of the respondent and they are living with him and his parents at his house which is within the jurisdiction of the family court, Muvattupuzha. The petitioner has failed to provide any evidence which could show otherwise. The respondent is a practicing doctor while the first petitioner is pursuing her post-graduate studies. Transfer of the cases from the family court, Muvattupuzha to the family court, Thrissur would cause considerable hardship to the respondent and also to the children.

The Court also noted that the respondent had filed O.P.(FC) Nos. 309 of 2020 and 323 of 2020 before this Court for speedy disposal of the cases O.P. No. 460 of 2019 and O.P. No. 662 of 2019 pending before the family court, Muvattupuzha in which this Court allowed the prayer issuing a direction that family court, Muvattupuzha has to dispose of the aforesaid two cases within a period of six months. If the cases are transferred now, then the same would result in an unnecessary delay thus defeating the purpose of expeditious disposal in return.

In view of the above, the Court has dismissed the present application finding no merit in the arguments raised by the petitioner.[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

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