IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 Tr.P(C).No. 190 of 2011() ------------------------------------- OP.NO. 462/2010 of FAMILY COURT, THODUPUZHA .................... PETITIONER -------------------- JACOB DAVID,S/O.DAVID,AGED 76 YEARS, MANIVELILPUTHEN VILLA,KUNNAM P.O,THAZHAKKARA VILLAGE,MAVELIKKARA,ALAPPUZHA DISTRICT. BY ADV. SMT.S.L.SYLAJA RESPONDENT(S): ---------------------------- ALEKUTTY,W/O.DAVID,AGED 66 YEARS, ARACKAKUNNEL HOUSE,THODUPUZHA P.O.,OLAMATTOM, IDUKKI DISTRICT,PIN- 678 038. BY THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2011, ALONG WITH TPC.NO.284 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts TPC.NO.190/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX A1 COPY OF THE DIVORCE PETITION FILED BY THE PETITIONER AS OP NO.671/2006 BEFORE THE FAMILY COURT, ALAPPUZHA. ANNEX A2 COPY OF THE COMPROMISE FILED BY THE PETITIONER AND RESPONDENT. ANNEX A3 COPY OF THE RECEIPTS GIVEN BY THE RESPONDENT. ANNEX A4 COPY OF THE MEDICAL REPORT. ANNEX A5 COPY OF THE DIVORCE PETITION FILED BY THE PETITIONER AS OP NO.242/2011 BEFORE THE HON'BLE FAMILY COURT, ALAPPUZHA. ANNEX A6 COPY OF THE PETITION FILED BY THE RESPONDENT AS OP NO.462/2010 BEFORE THE FAMILY COURT, THODUPUZHA. ANNEX A7 COPY OF THE OBJECTION FILED BY THE PETITIONER IN OP NO.462/2010 BEFORE THE FAMILY COURT, THODUPUZHA. RESPONDENT' ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- Tr.P(C).Nos.190 and 284 of 2011 --------------------------------------- Dated this 30th day of September, 2011 ORDER The husband, aged 76 years and the wife aged 66 years are at logger heads in the old age. They are unable to live together and are living separately. The wife filed O.P.No.462 of 2010 in the Family Court, Thodupuzha seeking return of ornaments, money etc against the husband. The husband on his part has filed O.P.No.242 of 2011 in the Family Court, Alappuzha for divorce. Both want the case filed by the other to be transferred to the Court near his/her place of residence. The husband filed Tr.P(C).No.190 of 2011 while the wife filed Tr.P(C).No.284 of 2011. The husband wants O.P.No.462 of 2010 to be withdrawn from the Family Court, Thodupuzha and transferred to the Family Court, Alappuzha while the wife wants O.P.No.242 of 2011 to be transferred to the Family Court, Thodupuzha. 2. Learned counsel for husband has brought to my notice the photocopy of a few medical certificates to impress upon this Court about the physical condition of the husband aged 76 years. Learned counsel pointed out that the husband is undergoing treatment for various illness including Kidney disease. Learned Tr.P(C).Nos.190 and 284 of 2011 -: 2 :- counsel has made a fervent plea to transfer O.P.No.462 of 2010 to Family court, Alappuzha contending that husband is unable to move about. Similar contentions are raised by the counsel for the wife as well. It is pointed out by the learned counsel that the wife is aged 66 years and she also has old age illness. If the case is transferred to the Family Court, Alappuzha the lady aged 66 years has to travel about 120km from her place of residence at Olamattom, there is nobody to accompany her and even if somebody to accompanies her, it involves huge expenses. 3. The Supreme Court in Sumitha Singh Vs. Sanjay Kumar & Another (AIR 2002 SC 396) and Arti Rani Lrs. Pinki Devi and Another Vs. Darmendra Kumar Gupta (2008 (9) SCC 353) has stated that while considering the request for transfer in matrimonial proceedings convenience of the wife has to be looked into. True that it does not mean inconvenience pleaded by the husband should be overlooked. In these cases, both sides have their own reasons to claim transfer of the case to the place of their convenience. Both sides are likely to be put to inconvenience if the request made by the other is allowed as such. In that situation, the proper course available to this Court is to find out a via media, another convenient place where the Tr.P(C).Nos.190 and 284 of 2011 -: 3 :- parties can contest the cases so that it involves lesser inconvenience to them than they suffer now. Having regard to the circumstances stated by both sides I am inclined to think that the cases could be transferred to the Family Court, Kottayam at Ettumanoor so that parties need only travel lesser distance to contest the cases. The husband, a resident of Kunnam, near Mavelikkara can come to Ettumanoor either by the passenger train or by bus. The wife who is residing at Olamattom can come to Ettumanoor by bus. In the circumstance, I am inclined to think that the proper course is to transfer the cases to the Family Court, Kottayam at Ettumanoor . Resultantly these petitions are disposed of as follows: (i) Tr.P(C).No.190 of 2011 is allowed. O.P.No.462 of 2010 is withdrawn from the Family Court, Thodupuzha and transferred to the Family Court Kottayam at Ettumanoor. (ii) Tr.P(C).No.284 of 2011 is allowed and O.P.No.242 of 2011 is withdrawn from the Family Court, Alappuzha and transferred to the Family Court, Kottayam at Ettumanoor. (iii) The Family Court, Kottayam, at Ettumanoor is directed to ensure that both cases are posted on the same dates. (iv) It is made clear that except when the physical presence of the parties is required, they can Tr.P(C).Nos.190 and 284 of 2011 -: 4 :- appear in the transferee Court through counsel. (v) It is also made clear that for the purpose of recording evidence, if the parties or any of them is unable to appear in Family Court, Kottayam at Ettumanoor they/she/he can request the said Court to record their/her/his evidence through commission as the law provides. (vi) Parties shall appear in the Family Court, Kottayam, at Ettumanoor on 31.10.2011. The transferor Courts while transmitting records of the case to the transferee Court shall direct the parties to appear in the transferee Court on 31.10.2011. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-