IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Tr.P(C).No. 90 of 2009() ------------------------ OP.104/2009 of FAMILY COURT, THIRUVALLA .................... PETITIONERS: --------------------------- 1. K.T.VARGHESE, KILLIKKAL GRACE BHAVAN, HOUSE NO.V.P.8/629, MOONNAM MOODU, KODUGGANOOR P.O. 2. RACHAL VARGHESE, KILLIKKAL GRACE BHAVAN, HOUSE NO.V.P.8/629, MOONNAM MOODU, KODUGGANOOR P.O. BY ADV. MR.R.GOPAN RESPONDENT(S): ---------------------------- 1. DAISY, THALAKKODU VEEDU, KANJIRAPPALLY TALUK, ARUMALI VILLAGE, KANAKAPALAM P.O. 2. AJI, KILLIKKAL GRACE BHAVAN, HOUSE NO.V.P.8/629, MOONNAM MOODU, KODUGGANOOR P.O. R1 BY ADV. MR.WILSON URMESE THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/07/2009 ALONG WITH TPC.NO.170 OF 2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.751/2009 IN Tr.P(C) NO.90/2009 DISMISSED 31/07/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- Tr.P.(C).NOS.90 & 170 OF 2009 () ----------------------------------- Dated this the 31st day of July, 2009 O R D E R Both these petitions are filed for transfer under Section 24 of the Code of Civil Procedure. Petitioners in Tr.P.(C). No.90 of 2009 are the 2nd and 3rd respondents in O.P.No.104 of 2009 on the file of the Family Court, Thiruvalla. The first respondent in the above O.P. is their son and that petition is filed by his wife, the daughter-in-law of the above petitioners in the transfer petition. Petitioner in O.P.No.104 of 2009 is hereinafter referred to as the 'wife' and the 1st respondent in that O.P. as the 'husband'. Wife has filed the above petition for return of ornaments and valuables allegedly retained by her husband and his parents, the petitioners in the above transfer petition. 2. The other petition for transfer Tr.P.(C).No.170 of 2009 is filed by the wife against the husband and his parents, TPC.90 & 170/09 2 who are the respondents therein for transfer of O.P.No.291 of 2009 pending before the Family Court, Nedumangad to the Family Court, Thiruvalla. The above petition O.P.No.291 of 2009 has been filed jointly by the husband and his parents against the wife seeking custody of two children born out of the wedlock of the spouses alleging that they have been unlawfully taken from their custody by the wife, their mother. 3. Notice on the applications given, the respective respondents have entered appearance through counsel. 4. I heard the counsel on both sides. Inviting my attention to the Annexures produced with the petition Tr.P.(C).No.90 of 2009 relating to the medical certificate and treatment of the 1st petitioner, the learned counsel for the petitioners submitted that he is unable to travel and go over to Thiruvalla to defend the petition filed by his daughter-in-law. She is working in Gulf country and she will not be prejudiced any manner by granting a transfer as requested for, is the submission of the learned counsel. The learned counsel for TPC.90 & 170/09 3 the petitioners submitted that the petition O.P.No.104 of 2009 has been filed by the wife and husband collusively to defraud them of all their valuable assets. Opposing the application, the learned counsel for the 1st respondent submitted that she has resigned from her job and the transfer of the petition from the Family court, Thiruvalla to Family Court, Nedumangad as sought for by the petitioners would cause her much inconvenience and difficulties. She has to attend to the needs of the two children born out of the wedlock with the 2nd respondent and the children are attending schools, is also canvassed that a transfer as desired by the petitioners to a far of place would affect the interest of the children as well. 5. The learned counsel for the husband supports the request of his parents for transfer of O.P.No.104 of 2009 filed by the wife from the Family Court, Thiruvalla to the Family Court, Nedumangad, and opposes the application of the wife for transfer of the O.P.No.291 of 2009 from the Family Court, Nedumangad to the Family Court, Thiruvalla. The case canvassed by the petitioners in Tr.P.(C).No.90 of 2009, the TPC.90 & 170/09 4 parents of the 2nd respondent husband that O.P.No.104 of 2009 has been filed collusively by the wife and the husband to defraud their assets can be taken only with a pinch of salt. Admittedly, after the filing of O.P.104 of 2009 by the wife, these petitioners together with their son moved the other petition, O.P.No.291 of 2009 before the Family Court, Nedumangad for the custody of the two children advancing a case that they were deprived of the custody of the children by the unlawful acts of the wife. It is further seen that the husband and his parents are residing under the same roof as shown from their address in the petition. The 1st petitioner in Tr.P.(C).No.90 of 2009, the father of the husband suffers from serious ailments and he is unable to travel to the Family Court situated at a far of place, which is sought to be supported by the medical certificates and prescriptions of the doctor, does not impress me at all since that claim in that O.P. Is triable as a civil suit in which the presence of the counter petitioners, who have the status of the defendants in a suit, may not be required. If at all the court insists for their presence producing medical certificates they TPC.90 & 170/09 5 can seek for personal exemption. If their evidence is to be recorded, they can also move for taking out a Commission. No court will normally discard the medical certificates and also the prescriptions of the doctors, if at all any such application is moved for exemption and taking out a commission for recording the evidence of a witness who suffers from some ailments preventing his appearance before the court. Further more, at present, the wife is having the custody of the two children who are admittedly attending schools in Thiruvalla. Both the children, needless to point out, whatever be the reason, are at present deprived of the love, affection and care of the father because of the estrangement of the spouses. So much so, at present they have only the attention of their mother, the wife. If she is compelled to go over to a Family Court at a far of place, that too to prosecute a case filed by her, as desired by the parents of her husband, naturally it will affect the interest of the minor children, which cannot be discarded as an innocuous circumstance. So, I find there is no merit in the application moved by the parents of the husband in Tr.P.(C).No.90 of 2009 for transfer of TPC.90 & 170/09 6 O.P.No.104 of 2009 from the Family Court, Thiruvalla to the Family Court, Nedumangad. That petition is liable to be dismissed, and I do so. So far as the petition moved by the wife for transfer of O.P.No.291 of 2009, the proceedings initiated under the Guardian and Wards Act, by the husband along with his parents, before the Family Court, Nedumangad, it is needless to point out, jurisdiction in respect of the minors covered by that proceedings depend upon the ordinary place of residence of the minors as covered by Section 9 of the Guardian and Wards Act. The children admittedly are now residing with their mother, the wife at Thiruvalla and attending to schools at that place. Whether it is the ordinary place of their residence and whether they had been removed from the lawful custody of the husband and his parents from Nedumangad is a matter, if raised, to be examined by the Family Court concerned. So much so, the petitioner in Tr.P.(C).No.170 of 2009, the wife, the mother of the children can move an application before the Family Court, Nedumangad, stating the circumstances that TPC.90 & 170/09 7 the Family Court, Thiruvalla alone is having jurisdiction and further proceedings in that case have to be taken pursuant to the orders on determining the question of jurisdiction. At this stage, it may be inappropriate for this Court to pass any order of transfer of that petition from the Family Court, Nedumangad to the Family Court, Thiruvalla as desired by the wife, the mother of the children; but, reserving her right to file an application afresh, the petition is closed. S.S.SATHEESACHANDRAN JUDGE prp