Temporary Shift Of Residence By Itself Not A Valid Ground For Transfer Of Cases: Kerala HC

While ruling clearly on whether a temporary shift of residence can constitute a valid ground for transfer of cases, the Kerala High Court has as recently as on January 3, 2022 in a frank, forthright, final and fitting judgment titled Meria Joseph vs Anoop S Ponnattu in TR.P(C) Nos. 488 of 2021 and connected cases ruled explicitly that shifting from permanent residence to a temporary residence by itself is not a ground to transfer cases pending within the jurisdiction of the permanent residence of both parties. It must be apprised here that a single Judge Bench of Justice A Badharudheen who authored this judgment dismissed the transfer petitions observing that such pleas would result in cases being transferred frequently. This our overburdened judiciary can definitely not afford anyhow or somehow which is one of the major reasons that explains why the Kerala High Court has dismissed these slew of transfer petitions!

To start with, it is first and foremost stated in para 1 of this judgment that, "These are transfer petitions filed by Meria Joseph, wife against her husband seeking transfer of O.P.Nos.412/2018 and 413/2018 filed by the petitioner herein before the Family Court, Pala and to transfer O.P.(Div).No.693/2019 and O.P.(G&W) No.695/2019 filed by the respondent husband before the Family Court Pala, to the Family Court, Attingal."

As we see, after hearing both the sides as mentioned in para 2, the Bench then puts forth in para 3 that, "It is submitted by the learned counsel for the petitioner/wife that the wife who originally belonged to Pambady in Pala filed two Original Petitions and the husband, a resident within the jurisdiction of the Family Court, Pala also filed two Original Petitions before the Family Court, Pala. It is submitted that now the petitioner got appointment as Digital Marketing Trainee in Thiruvananthapuram and therefore, she had shifted her residence to Attingal. It is submitted further that now the petitioner has been residing in a rental house in Attingal. A rent deed showing availing of rental house in Attingal also has been placed in support of this contention."

While continuing in the same vein, the Bench then observes in para 4 that, "The learned counsel for the petitioner would submit further that the petitioner at present has been residing in Attingal along with 3 ½ year old child and therefore, she has been experiencing difficulties to reach the Family Court, Pala to conduct the cases. As such, the learned counsel pressed for transfer as sought for."

On the other hand, the Bench then states in para 5 that, "The husband/respondent who opposed the transfer petition filed detailed counter, stating that M.C.No.6/2018 was filed by the petitioner before the Grama Nyayalaya, Pampady and that was allowed in favour of the petitioner. Against which Crl.A.No.171/2018 filed before the Sessions Court, Kottayam and the same was allowed and modified the order on 10.07.2020. It is submitted further that a shift in place of residence by the petitioner at her convenience that too in a rental house, cannot be a reason to transfer cases at her convenience. In this connection, the learned counsel for the respondent/husband placed recent decision of this Court in Vidhya Mundekkat v. Akhilesh Jayaram (2021 (6) KHC 506)."

Simply put, the Bench then points out in para 6 that, "The learned counsel for the petitioner would submit that following the ratio in the decisions reported in Sumitha Singh v. Kumar Saanjay and others (2002 KHC 1889 : AIR 2002 SC 396 : 2001 AIR SCW 5193 : (2001) 10 SCC 41 : 2001 (5) Supreme 667), Mangla Patil Kale v. Sanjeev Kumar Kale ((2003) 10 SCC 280), and Anindita Das v. Srijit Das (2006 KHC 1887 : (2006) 9 SCC 197), the petitioner is entitled to get transfer of these proceedings to place of her convenience."

It is noteworthy that the Bench then mentions in para 7 that, "In fact, in the decision in Vidhya Mundekkat' case (supra), a Division Bench of this Court considered the parameters to be borne in mind while considering transfer of cases at the instance of the wife and after referring the above decisions it was held that it is not an invariable rule that whenever a wife makes a request pointing out her inconvenience, transfer of a case to a court of her choice is automatic."

To put it differently, the Bench then added in para 8 that, "In Anindita Das’ case (supra), the Apex Court held that each case must be considered on its merit."

Be it noted, the Bench then stipulates in para 9 that, "It is in this context, the grievance of the petitioner requires to be addressed. Here, the petitioner wants to transfer the above cases on the assertion that she had shifted her permanent residence in Pala to a rental house in Attingal. Now the crucial question is; whether temporary shift of residence by the wife is a reason to transfer of cases within the jurisdiction of the said temporary residence?"

Finally and far most significantly, what forms the cornerstone of this notable judgment is that the Bench then underscores in para 10 that, "Here, admittedly, the petitioner originally is a permanent resident of Pala. Her husband, the respondent also has been residing in Pala. These transfer petitions have been filed only on the ground that the petitioner shifted her residence at present to Attingal, that too in a rental house. I do not think that shifting a permanent residence to a temporary residence, that too in a rental house by itself is a ground to transfer cases pending within the jurisdiction of the permanent residence of both parties. The rational is; in the case of temporary residence, particularly rental accommodation, the same is not at all static and it can be changed for any immediate reason. If cases are transferred to such temporary abode, again and again cases will have to be transferred, when the temporary residence being shifted. Therefore, I am of the considered view that availing a temporary residence, either by way of rental accommodation or otherwise shall not be a ground to allow transfer of cases on the mere plea that the said place is convenient to the wife. In view of the above finding, I find no merit in these transfer petitions. Accordingly, these petitions stand dismissed."

In conclusion, the Kerala High Court has minced just no words to take the rational and tenable stand that temporary shift of residence by itself is definitely not a valid ground for transfer of cases. If cases have to be transferred again and again due to temporary change in residence then this will definitely cause a lot of inconvenience to the party not seeking the transfer and a lot of time of the courts also will be wasted indisputably in the process which cannot be considered a prudent step under any circumstances especially considering the fact that there are so many crores of cases which are pending adjudication and for many years don’t come up even for hearing also! Above all, it is not at all feasible that cases be transferred promptly at the drop of a hat, in other words, just because of a temporary shift of residence of a party and for no other reason!