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HIGH COURT OF KERALA
C.S. DIAS, J
SHERIN KURUVILLA – Appellant
Versus
ANEESH PHILIPHOSE – Respondent
Tr.P(C)/497/2022
Transfer - Family Law - Code of Civil Procedure, Section 24 - Court allowed the transfer of custody disputes from one Family Court to another based on the convenience of the children and the parties involved.
Fact of the Case:
The petitioner sought to transfer a custody case from Ernakulam to Thiruvananthapuram, citing residence, children’s education, health issues, and the impracticality of travel between locations as reasons for the transfer.
Finding of the Court:
The court found that convenience and welfare of the children were paramount. The petitioner had established residence in Thiruvananthapuram, and significant hardships would arise if the case remained in Ernakulam. The court underscored that past rulings supported the convenience of the family.
Issues: Whether the custody proceedings (O.P.No.3087/2021) should be transferred from Family Court, Ernakulam to Family Court, Thiruvananthapuram.
Ratio Decidendi: The court reaffirmed that the welfare of the children and the convenience of the parties are critical factors in deciding the location for custody proceedings, asserting the principle established in previous rulings concerning domestic matters.
Final Decision: The court allowed the transfer petition, moving O.P.No.3087/2021 to Thiruvananthapuram Family Court.
ORDER
Dated this the 26th day of August, 2022 The transfer petition is filed under Section 24 of the Code of Civil Procedure , to transfer O.P.No.3087/2021 from the Family Court, Ernakulam to the Family Court, Thiruvananthapuram.
2. The concise case of the petitioner, relevant for the determination of transfer petition, is that:
(i) the petitioner is the wife of the respondent.
They were married on 07.01.2007. They have three sons born in the wed lock. The couple and the children were residing in United Arab Emirates. From 2016 onwards, they are away from bed and board. The respondent has no emotional attachment towards the petitioner or the children. The petitioner gave up her employment for the sake of taking care of her children. The petitioner got afflicted with various health issues. In 2021, the respondent lost his employment due to the pandemic and the couple and the children returned to Kerala. The petitioner was diagnosed with bilateral nodules in her vocal cord. She was treated at the Gitanjili Hospital, Thiruvananthapuram and underwent an open neck surgery on 11.09.2021.
(ii) In the meantime, the respondent filed W.P.
(Crl.)No.448/2021 before this Court for a writ of Habeas Corpus. This Court by Annexure A2 judgment, after interacting with the petitioner and the children, found that there was no illegal detention of the petitioner and the children and accordingly closed the writ petition, relegating the parties to work out their remedies before the jurisdictional court.
(iii) The respondent filed O.P.No.3087/2021 before the Family Court, Ernakulam, for a decree for restitution of conjugal rights and an order for the custody of the children.
(iv) Since the Family Court declined to grant an order for the temporary custody of the children, the respondent filed O.P.(FC)No.88/2022 before this Court. By Annexure A5 judgment, this Court granted interim custody of the children to the respondent, for ten days each in the months of April and May, 2022.
(v) After relocating to Thiruvananthapuram, the petitioner has filed M.C.No.151/2021 against the respondent, before the Judicial First Class Magistrate Court, Thiruvananthapuram, invoking the provisions of Protection of Women from Domestic Violence Act.
(vi) The three children are pursuing their studies in the Sarvodaya Central Vidyalaya, Thiruvananthapuram.
(vii) The petitioner approached this Court and filed W.P.(C.) No. 14963/2022 to direct the school where the children were studying to issue their transfer certificates. A learned Single Judge of this Court by Annexure A7 judgment allowed the writ petition.
(viii) The judgment was challenged by the respondent in W.A.No.674/2022. This Court by Annexure A8 judgment set aside Annexure A7 and directed the Family Court to consider and dispose of the applications whether the petitioner is entitled for the transfer certificates of the children.
(ix) Thereafter, the petitioner filed an application challenging the territorial jurisdiction of the Family Court, Ernakulam, to entertain O.P.No.3087/2021. The application was dismissed by Annexure A10.
(x) The petitioner has now filed M.C.No.112/2022 against the respondent, before the Family Court, Thiruvananthapuram, for an order of maintenance.
(xi) The petitioner and the children are residing in Thirvananthapuram. The petitioner has to undergo frequent checkups in the Gitanjili Hospital, Thiruvananthapuram. The children are residing in Thiruvananthapuram. Since O.P.No. 3087/2021 being a custody matter, the children will have to be carted from Thiruvananthapuram to Ernakulam, to provide interim custody to the respondent.
(xii) The petitioner is employed as an Architect in a project team in Thiruvananthapuram. She and the children would be put to grave inconvenience if the proceeding is contested at the Family Court, Ernakulam. Hence, the transfer petition.
3. The respondent has filed a counter affidavit, denying the allegations in the transfer petition. He has contended that the petitioner has approa
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