The court emphasized that jurisdiction is determined by the petitioner’s permanent residence, which must be substantiated with evidence.

JUDGMENT

Ajithkumar, J.

This is an intra-court appeal under Section 5 (i) of the Kerala High Court Act, 1958 .

2. The appellant filed Tr.P.(C) No.283 of 2021 under Section 24 of the Code of Civil Procedure, 1908 . She wanted to transfer O.P.Nos.354 of 2019 and 749 of 2020 pending on the files of the Family Court, Kozhikode to Family Court, Chavara. As per order dated 01.07.2021 the transfer petition was dismissed. Feeling aggrieved of the said order, the appellant preferred this appeal.

3. The appellant is the wife of the respondent. Their marriage was solemnized on 31.01.2011 at Kozhikode. They were blessed with a girl child born on 29.12.2012. Discord in the marital relationship resulted in filing of cases by either side, one after the other. The appellant filed O.P.No.354 of 2019 before the Family Court, Kozhikode for restitution of conjugal rights. She also filed M.C.No.31 of 2016 before the Judicial First Class Magistrate Court-I, Kozhikode alleging domestic violence. The respondent filed O.P.(G&W) No.574 of 2017 for getting his guardianship declared and custody of the child and O.P.No.749 of 2020 for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 , both before the Family Court, Kozhikode. M.C.No.31 of 2016 was dismissed. However, the respondent continues to pay Rs.10,000/- every month as maintenance to the minor child as per interim order in the case. O.P.(G&W) No.574 of 2017 was also dismissed, however, allowing the respondent to have visitation rights to the child. Thus, the litigations between the parties now pending before the Family Court, Kozhikode are O.P.No.354 of

2019 and O.P.No.749 of 2020.

4. The appellant, contending that she shifted her permanent residence to Vallikkavu in Karungappally, wanted to transfer the said cases to the Family Court, Chavara. It is her case that she as well her daughter are unable to travel about 330 kilometers to reach Kozhikode to attend the court, whereas the respondent, who is residing at Chennai, can without any inconvenience, come over to Chavara, and therefore, justice demands transfer of the said cases to Family Court, Chavara.

5. The respondent, on the other hand, contended that the petitioner is still a permanent resident of Kozhikode and claiming so only she filed cases before both the Family Court and the Magistrate’s Court at Kozhikode. The petitioner after getting the child admitted to the Amrita Vidyalayam, Karunagappally moved for transfer of the cases with the object of thwarting the visitation right given to the respondent by the Family Court.

6. The learned Single Judge, after considering the whole matter in detail, dismissed the transfer petition. Apart from the finding that there was no substance in the contention of the appellant that she had shifted her residence to Karungappally, the learned Single Judge emphasised that even going by the facts admitted by the appellant, the Family Court, Kozhikode alone has the jurisdiction to try the cases.

7. Heard Sri. B. Mohanlal, learned counsel for the appellant and Sri. K.A. Salil Narayanan, learned counsel for the respondent.

8. A Full Bench of this Court reminded about the restraint required while considering an appeal under Section 5 (i) of the Kerala High Court Act, 1958 against order of a Single Judge on an application for transfer under Section 24 of the Code of Civil Procedure, 1908 inBalan v. Sivagiri Sree Narayana Dharma Sanghom Trust [ 2005 (4) KLT 865 ].

Paragraph 15 of the said judgment reads thus:

“15. Even though an order passed at the instance of one party to the suit by the single Judge under Section 24 of the Code of Civil Procedure is appealable under Section 5 (i) of the High Court Act a word of caution is also necessary. When an appeal is filed against the order passed under by a learned single Judge of the High Court, Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave and substantial injustice.”

9. Keepin