IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Tr.P(C).No. 239 of 2009() ------------------------- OP.828/2009 of FAMILY COURT, NEDUMANGAD .................... PETITIONERS/PETITIONERS: ------------------------------------------- 1. CHANDRAPRABHA, AGED 23 YEARS, DAUGHTER OF LATE RAJAMMA, PUTHUVAL HOUSE, KUTTIKKAD P.O., KADAKKAL VILLAGE, KOTTARAKKARA TALUK. 2. ANUSREE, AGED 2 YEARS, DAUGHTER OF SHYJU AND CHANDRAPRABHA, REPRESENTED BY THE 1ST PETITIONER. BY ADVS. MR.ALAN PAPALI, MR.SOJAN MICHEAL. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. SHYJU, AGED 36 YEARS, VILAYIL HOUSE, DARSANAVATTOM DESOM, NAGAROOR P.O., ATTINGAL, CHIRAYINKEEZHU TALUK. 2. RADHA, WIFE OF GOPI, VILAYIL HOUSE, DARSANAVATTOM DESOM, NAGAROOR P.O., ATTINGAL, CHIRAYINKEEZHU TALUK. 3. SINDHU, DAUGHTER OF RADHA, VILAYIL HOUSE, DARSANAVATTOM DESOM, NAGAROOR P.O., ATTINGAL, CHIRAYINKEEZHU TALUK. 4. GOPI, SON OF GOVINDAN, VILAYIL HOUSE, DARSANAVATTOM DESOM, NAGAROOR P.O., ATTINGAL, CHIRAYINKEEZHU TALUK. R1 & R2 BY ADV. MR.LATHEESH SEBASTIAN FOR R1 & 2 THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009 ALONG WITH TPC NO. 296 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- Tr.P.(C).Nos. 239 AND 296 OF 2009 -------------------------------- Dated this the 20th day of November 2009 ---------------------------------------------------------- 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