THOMAS Vs. SUNNICHAN
LAWS(KER)-2003-12-121
HIGH COURT OF KERALA
Decided on December 15,2003

THOMAS Appellant
VERSUS
SUNNICHAN Respondents

JUDGEMENT

K. K. Denesan, J. - (1.) THIS Transfer Petition is filed to transfer O. P. (Divorce) No. 73 of 2003 pending before the Family Court, Kottayam at ettumanoor to the Family Court, Pathanamthitta at Thiruvalla to be tried along with O. P. No. 944 of 2003.
(2.) O. P. (Divorce) No. 73 of 2003 was filed before the family Court, Kottayam by the 1st respondent herein who is the husband of the petitioner's daughter Shiji @ Shija aged 31 years. The 2nd respondent herein is the father of the 1st respondent. It is for a declaration that his marriage with the petitioner's daughter is a nullity on the ground that the above named shiji @ Shija is an idiot. O. P. No. 944 of 2003 was filed by the petitioner herein and his daughter Shiji @ Shija before the Family Court, Pathanamthitta at thiruvalla praying for return of patrimony and compensation from the respondents. The Family Court, Thiruvalla, has passed an order of attachment before judgment against the respondents. The respondents have taken a preliminary objection before that Court contending that it has no jurisdiction to entertain the O. P. filed by the petitioner and his daughter. According to the petitioner, the following facts are relevant for a just and proper disposal of this Transfer Petition. Shiji @ shija has given birth to a child. The said minor child born in the wedlock between herself and the first respondent is only 8 months old. The mother as well as the minor child got infected with jaundice and they are undergoing treatment. Due to ill health, Shiji @ Shija is not able to travel to Ettumanoor in Kottayam District where O. P. (Divorce) No. 73 of 2003 is pending. Family court at Ettumanoor is 40 kms. away from Mundiyapally where the petitioner, his daughter Shiji @ Shija and the small baby reside whereas Family Court, thiruvalla is just 10 kms. away from Mundiyapally. The first respondent is residing at Veroor in Vazhapally Village, Changanacherry Taluk. The distance between the residence of the respondents and the Family Court, Thiruvalla is less than 15 kms. whereas the distance between Family Court, Kottayam at ettumanoor and the residence of the respondents is more than 30 kms. It is therefore stated that the Family Court, Pathanamthitta at Thiruvalla is the court convenient for both the parties. According to the petitioner Shiji @ shija and the 1st respondent last resided together in the petitioner's house at mundiyapally. Hence the said court has got jurisdiction to try the case filed by the petitioner and his daughter.
(3.) RESPONDENTS, in the counter-affidavit filed before this court, opposed the prayer for transfer of O. P. (Divorce) No. 73 of 2003 pending before the Family Court, Kottayam at Ettumanoor to the Family Court, pathanamthitta at Thiruvalla on the ground that the Family Court at Thiruvalla lacks territorial jurisdiction to entertain as also try and dispose of cases relating to the matrimonial dispute between the petitioner and the respondents. RESPONDENTS have already raised a preliminary objection before the Family court, Pathanamthitta at Thiruvalla on the question of jurisdiction in O. P. No. 944 of 2003 filed by the petitioner herein and his daughter claiming patrimony and other sums from the respondents. The marriage between the petitioner's daughter and the 1st respondent is admitted in the counter-affidavit. The fact that a child was born in the wedlock is also admitted. However, averments regarding jaundice is not admitted. According to the respondents, O. P. No. 944 of 2003 has to be treated as a suit for money and since the alleged transactions took place within the territorial limits of the Family Court, kottayam at Ettumanoor, proceedings before the Family Court at Thiruvalla are hit by S. 20 of the Civil Procedure Code. According to the respondents they are neither residing within the territorial limits of the Family Court at thiruvalla nor the cause of action either wholly or in part has arisen within the jurisdiction of that court. The above transfer petition has been filed by the petitioner to get over the objection raised by the respondents regarding jurisdiction for the Family Court at Thiruvalla to try and dispose of O. P. No. 944 of 2003. RESPONDENTS would further submit that the only court having jurisdiction to proceed with the petition filed seeking a declaration that the marriage is a nullity, is the Family Court, Kottayam at Ettumanoor because the marriage was solemnised in St Joseph's Church, Veroor, Changanacherry in kottayam District. Shri Mathew Philip, learned Counsel for the respondents contended that under S. 7 (1) (b) of the Family Courts Act, 1984 a place where a petition has to be filed for a settlement of the matrimonial dispute is the place where a suit could have been filed under S. 20 of the C. P. C.;


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