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Smt. K. Pappamal Vs. S. Bhagavathy Appan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberC.M.C. No. 24 of 1983
Judge
Reported inAIR1985Ker91
ActsCode of Civil Procedure (CPC) , 1908 - Sections 24; Hindu Marriage Act, 1955 - Sections 9, 13 and 21
AppellantSmt. K. Pappamal
RespondentS. Bhagavathy Appan
Appellant Advocate V. Chitambaresh, Adv.
Respondent Advocate V.N. Achutha Kurup and; M.S. Radhakrishnan Nair, Advs.
DispositionPetition allowed
Cases Referred(See T. Reddy v. M. Rao
Excerpt:
- - 2. the parties to the litigation got married on 16-11-1975. their married life, however, does not appear to have been very happy. 3. the wife has complained that she does not possess sufficient financial ability to go to trivandrum and contest the matter......the husband entered appearance in that court, but repudiated the liability to reside with the wife. the husband's petition was for divorce on the ground of insanity of the wife. that was filed before the sub court, trivandrum, on 15-9-1983 three months after the wife's petition.3. the wife has complained that she does not possess sufficient financial ability to go to trivandrum and contest the matter. a mala-fide intention of harassing her and her mother is alleged against the husband.4. on behalf of the husband, counsel stressed the difficulties undergone by the husband soon after the marriage. the indications about the wife not being mentally sound were also stressed. it was even suggested that the wife had hurried with the petition before the sub court, palghat, with a view to.....
Judgment:
ORDER

K. Sukumaran, J.

1. This is an application under Section 24, C.P.C., and Section 21 of the Hindu Marriage Act, 1955, for a transfer of a petition O.P. (H.M.A.) 247 of 1983 pending before the Sub Court, Trivandrum, to the Sub Court, Palghat, where a petition O.P. (H.M.A.) 47 of 1983 is pending.

2. The parties to the litigation got married on 16-11-1975. Their married life, however, does not appear to have been very happy. It is not necessary to go into the details of the rival contentions in the two petitions, one at the instance of the wife and the other at the instance of the husband. It is sufficient to note that the wife had filed a petition, one for restitution of conjugal rights before the Sub Court, Palghat, earlier, namely 28-6-1983. The husband entered appearance in that court, but repudiated the liability to reside with the wife. The husband's petition was for divorce on the ground of insanity of the wife. That was filed before the Sub Court, Trivandrum, on 15-9-1983 three months after the wife's petition.

3. The wife has complained that she does not possess sufficient financial ability to go to Trivandrum and contest the matter. A mala-fide intention of harassing her and her mother is alleged against the husband.

4. On behalf of the husband, counsel stressed the difficulties undergone by the husband soon after the marriage. The indications about the wife not being mentally sound were also stressed. It was even suggested that the wife had hurried with the petition before the Sub Court, Palghat, with a view to avoid the litigation in a proper court, the court at Trivandrum. It was strongly contended that the Sub Court, Palghat, had no jurisdiction at all to try any of the petitions.

5. It is not necessary to go into the correctness or otherwise of the allegations made and repelled by either side. The power under Section 24 and Section 21 has to be exercised on a consideration of all relevant aspects. In considering this question of transfer, the general disadvantageous situation of a wife cannot be overlooked. It is more so in the present case, where, the wife is, according to her husband mentally infirm. Even if she does not have any such infirmity, in the present situation, she has necessarily to depend upon her mother as the only help. Even a travel from Palghat to Trivandrum, in her case, would be very difficult and tedious. On the other hand, if the husband has attended to the Palghat Court in connection with the legal proceedings there, it may not create acute difficulty. It may only be a case of some inconvenience and not one of virtual impossibility as in the case of the wife. These facts would justify the transfer of the case pending in the Court at Trivandrum to the Sub Court at Palghat.

6. The contention that the Palghat court has no jurisdiction at all, would not be a serious impediment in ordering the transfer. As a general principle, it is now fairly settled that an allegation that the transferee court has no jurisdiction to try the suit would not bar the High Court in exercising the power of transfer. It is to be noted that the lack of jurisdiction of the Palghat Court is not conceded. That is a disputed issue. Whether there is jurisdiction for that court or not, will be ascertainable only after evidence on that aspect is adduced and the question considered in all the aspects. Merely because there is a dispute regarding jurisdiction, the High Court is not rendered powerless in effecting a transfer, when the transfer is otherwise justified. (See T. Reddy v. M. Rao, AIR 1970 AP 194).

Having regard to the circumstances indicated above, I allow the petition and transfer the petition O.P.(H.M.A.) 247 of 1983 pending before the Sub Court, Trivandrum, to the file of the Sub Court, Palghat. There will be no order as to costs.


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