IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 Tr.P(C).No. 332 of 2011 -------------------------------- [O.P(G&W).NO.463/2011 OF FAMILY COURT, THODUPUZHA] .................... PETITIONER: ------------------- SIMI K. GEORGE, W/O.VIPIN JOSEPH, AGED 34 YEARS, RESIDING AT KODIUMPURAYIDATHIL HOUSE, MARANGATTUPALLY P.O, ILAKKADU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.P.C.HARIDAS. RESPONDENT: ---------------------- VIPIN, S/O.JOSEPH, AGED 35 YEARS, RESIDING AT PONNATTU HOUSE, VAZHITHALA P.O, PURAPPUZHA VILLAGE, THODUPUZHA TALUK. ADVS. SRI.SHAJI P.CHALY, SMT.LIJITTA G.MATHEW, SMT.S.K.SREEKALA. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: TR.P.(C).NO.332/2011: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE O.P.(DIV).NO.608/2011 ON THE FILES OF THE FAMILY COURT, KOTTAYAM. EXT.P.2: COPY OF THE O.P.NO.609/2011 ON THE FILES OF THE FAMILY COURT, KOTTAYAM. EXT.P.3: COPY OF THE M.C. NO.156/2011 ON THE FILES OF THE FAMILY COURT, KOTTAYAM. EXT.P.4: COPY OF THE O.P (G&W) NO.463/2011 ON THE FILES OF THE FAMILY COURT, THODUPUZHA. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== Tr.P(C) No.332 of 2011 ==================================== Dated this the 31st day of October, 2011 O R D E R This petition is for transfer of O.P(G&W) No.463 of 2011 from the Family Court, Thodupuzha to the Family Court, Kottayam at Ettumanoor. It is stated as reasons for seeking transfer that petitioner is residing at Marangattupally, in Kottayam District, she has to travel the long distance from her place of residence to Thodupuzha to contest O.P(G&W) No.463 of 2011 and that three proceedings instituted by her - O.P(Div.) No.608 of 2011, O.P. No.609 of 2011 and M.C. No.156 of 2011 are pending in the Family Court, Kottayam, at Ettumanoor. Of the above, learned counsel submitted that M.C. No.156 of 2011 has already been disposed of. 2. Application is opposed by the respondent. It is contended that O.P. No.608 of 2011 is not even maintainable before the Family Court, Kottayam at Ettumanoor since as per the Indian Divorce Act (for short, “the Act”) a petition for divorce has to be filed in the court where the parties last resided together or marriage was solemnized. Learned counsel invited my attention Tr.P(C) No.332 of 2011 -: 2 :- to Sec.8 of the Act which deals with the extraordinary jurisdiction of the court to withdraw suit or proceeding and transfer it for trial or disposal by court of any other District Judge. Further, my attention is brought to the definition of 'District Judge' and 'District Court' contained in in sub-secs.(2) and (3) of Sec.3 of the Act. According to the learned counsel when O.P(Div.) No.608 of 2011 is not maintainable in the Family Court, Kottayam at Ettumanoor, petitioner who filed that petition cannot seek transfer of O.P(G&W) No.463 of 2011 from the Family Court, Thodupuzha to the Family Court, Kottayam at Ettumanoor to facilitate a simultaneous disposal of the said petitions. Counsel has placed reliance on the decisions in Shajan v. Biny Mathew (2001 [2] KLT 154) and Mabel Treeza Pinto v. Francis Pinto ([2005] 7 SCC 761). 3. I am afraid, the above contention cannot be accepted. Decisions referred to and relied concerned institution of proceedings under the Act and the court having jurisdiction to entertain such proceedings. I am not, in this proceeding dealing with the maintainability of O.P(Div.) No.608 of 2011 in the Family Court, Kottayam at Ettumanoor. On the other hand, request in this proceeding is for transfer of O.P(G&W) No.463 of 2011 from Tr.P(C) No.332 of 2011 -: 3 :- the Family Court, Thodupuzha to the Family Court, Kottayam at Ettumanoor. 4. I must also bear in mind that it is not merely on the pendency of O.P(Div.) No.608 of 2011 in the Family Court, Kottayam at Ettumanoor that petitioner has requested for transfer. It is stated that petitioner is residing at Marangattupally and that she has to travel a long distance from her place of residence to Thodupuzha to contest the case. It is also stated that O.P. No.609 of 2011 filed by her for return of gold ornaments, money, etc., is pending in the Family Court, Kottayam, at Ettumanoor. Though M.C. No.156 of 2011 filed in the Family Court, Kottayam at Ettumanoor has already been disposed of, execution proceeding in that case has to be continued in the said court. In the circumstances the issue regarding convenience of parties also required to be considered. 5. 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. Petitioner is residing at Marangattupally while the respondent is Tr.P(C) No.332 of 2011 -: 4 :- residing at Vazhithala, in Idukki District. Petitioner is aged 38 years. She has to travel the long distance from her place of residence to Thodupuzha to contest the case. She may have to be accompanied by somebody which involves expenses also. Moreover, proceedings initiated by petitioner is pending in the Family Court, Kottayam at Ettumanoor. Respondent has to attend that court. In the circumstances it is only appropriate that O.P(G&W) No.463 of 2011 is transferred to the Family Court, Kottayam at Ettumanoor. The inconvenience that may be caused to respondent by transferring the case to the Family Court, Kottayam at Ettumanoor can be reduced by directing that he can appear in the transferee court through counsel except when his physical presence is required. Having regard to the circumstances above stated, I am inclined to allow the petition. Resultantly, the Petition is allowed as follows: (a) O.P(G&W). No.463 of 2011 pending in the Family Court, Thodupuzha is withdrawn from that court and made over to the Family Court, Kottayam at Ettumanoor. (b) The transferor court while transmitting Tr.P(C) No.332 of 2011 -: 5 :- records of the case to the transferee court shall fix the date for appearance of parties in the transferee court with due intimation to the counsel on both sides. (c) The Family Court, Kottayam at Ettumanoor shall ensure that O.P(G&W) No.463 of 2011 (transferred to it) and O.P. Nos.608 and 609 of 2011 (pending in that court) as also the execution petitions if any filed in M.C. No.156 of 2011 are posted as far as possible on the same dates. (d) It is made clear that except when the physical presence of respondent in the transferee court (in the Original Petitions) is necessary he can appear through counsel (in the Original Petitions). All pending interlocutory applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv