IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 Tr.P(C).No. 163 of 2011() ------------------------- OP.99/2011 of FAMILY COURT, VADAKARA .................... PETITIONER: ----------------------- JINCY JOSE, AGED 20 YEARS, D/O. JOSE,MOONJELIL VEEDU, KUMARANALLOOR AMSOM,P.O.ALLI,MUKKOM, KOZHIKODE DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ---------------------------- JOBY JOHN,AGED 28 YEARS, S/O.JOHN @ KUNJACHAN, KUNNATHU VEEDU, KARIYATHUMPARA P.O., KURACHUNDU,KOZHIKODE DISTRICT-673 632. BY ADV. SRI.K.A.SALIL NARAYANAN THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011 ALONG WITH TPC.NO.164 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss TPC.NO.163/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF THE PETITION FILED BY THE PETITIONER WHICH IS NUMBERED AS OP.NO.945/2010 BY THE FAMILY COURT, KOZHIKODE DTD. 27/09/2010. ANNEX.B: COPY OF THE PETITION FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOZHIKODE WHICH IS NUMBERED AS O.P.NO.1111/2010 DTD. 8/11/2010. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) Nos.163 & 164 of 2011 -------------------------------------- Dated this the 10th day of August, 2011. ORDER These petitions are filed by the wife seeking transfer of O.P.Nos.99 of 2011 and 243 of 2011 respectively, from Family Court, Vadakara to Family Court, Kozhikode. O.P.No.99 of 2011 is filed by the respondent-husband for restitution of conjugal rights while O.P.No.243 of 2011 is filed by the petitioner – wife for divorce. It is stated that these cases were originally filed in Family Court, Kozhikode and later, on formation of Family Court, Vadakara the same were made over to that court. It is stated that petitioner is a resident of Mukkom, in Kozhikode District and she has to travel the long distance from that place to Vadakara. Hence the request for transfer. Learned counsel for respondent submitted that the information received by him is that O.P.No.99 of 2011 is decided exparte directing restitution of conjugal rights. But learned counsel for petitioner was not able to conform that. 2. If O.P.No.99 of 2011 is decided exparte the question of its transfer as requested by petitioner arises only if it is reopened by the same court. If any application for re-opening the decree in O.P.No.99 of 2011 is pending or filed, it is only appropriate that such application is disposed of by the same court. 3. However the request of petitioner to transfer O.P.No.243 of 2011 pending in Family Court, Vadakara having regard to the inconvenience of Tr.P.(C) Nos.163 & 164/2011 2 petitioner stated above has to be considered. The Supreme Court in Sumitha Singh v. Kumar Sanjay and another (AIR 2002 SC 396) and Arti Rani v. Dharmendra Kumar Gupta ([2008] 9 SCC 353) has stated that while considering request for transfer of matrimonial proceedings convenience of the wife has to be looked into. That of course does not mean that the inconvenience of the husband has to be ignored. It is not disputed that petitioner is staying at Mukkom. She would find it difficult to travel all the distance from that place to Family Court, Vadakara to contest the cases. Considering the facts and circumstances I am satisfied that the comparative hardship is more on petitioner if the request for transfer is not allowed than the inconvenience that may be caused to the respondent if the request for transfer is allowed. Hence I am inclined to allow this petition. Resultantly, these petitions are allowed in the following lines: i. Tr.P.(C) No.163 of 2011 is disposed of directing that if O.P.No.99 of 2011 is still alive, Family Court, Vadakara shall transmit the records of that case to Family Court, Kozhikode. In case that case has been decided exparte, such transmission of records shall be made only in the event of the decree being re- opened. ii. Tr.P. (C) No.164 of 2011 is allowed and O.P.No.241 of 2011 pending in Family Court, Vadakara is withdrawn from that court and transferred to Family Court, Kozhikode. Tr.P.(C) Nos.163 & 164/2011 3 iii. While transmitting records of the case/cases as above stated, the transferor court shall fix the date of appearance in the transferee court with due intimation to the counsel on both sides. iv. It is made clear that except when physical presence of the respondent in the transferee court is necessary, he can appear through counsel. All pending interlocutory applications in both the cases will stand dismissed. THOMAS P.JOSEPH, Judge. cks