IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH JULY 2007 / 22ND ASHADHA 1929 Tr.Appeal(C).No. 4 of 2007() ---------------------------- AGAINST THE JUDGEMENT/ORDER IN TPC.121/2006 Dated 11/01/2007 OPGW.54/2006 of FAMILY COURT, THODUPUZHA .................... : APPELLANT/PETITIONER/RESPONDENT ------------------------------------------------ SANIL DUTH, S/O.P.N.GOPINATHAN, KAMALA MANDIRAM, KOTTAKKERAM, PARIPPALLY P.O., KOLLAM REP. BY P/A.HOLDER, ZENITH,OF DO. DO. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: PETITIONER ----------------------- BEENA GEORGE, D/O.GEORGE, PAIKADA HOUSE, THEKKUMBHAGOM P.O., KARIKODE VILLAGE, THODUPUZHA, IDUKKI DISTRICT. BY ADV. SRI.ROJO J.THURUTHIPARA THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 5/7/2007, THE COURT ON 13/7/2007 DELIVERED THE FOLLOWING: Kurian Joseph & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tr. A .NO.4 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2007 JUDGMENT T.R. Ramachandran Nair, J. The appellant is the petitioner in Tr. P. (Civil) No.121/2006. The Transfer Petition was filed to transfer O.P.(Guardian) No.54/2006 pending before the Family Court, Thodupuzha to Family Court, Kollam. The learned Single Judge dismissed the same taking the view that when the convenience of parties is taken into consideration, the convenience of the mother of the child will outweigh that of the father. Aggrieved by the same, this appeal is filed by the appellant through his power of attorney holder. It is stated that the appellant is now working outside India. 2. The parties were married on 12.5.1994 which relationship is evidenced by Annexure II. 3. It is the case of the appellant that the wife, respondent herein after getting appointment as a Nurse in the Regional Cancer Centre, Thiruvananthapuram, was behaving intolerably against the husband and the child apparently because of her connection with another person, one Sajeeb. It is pointed out that she had filed O.P.No.171/2002 (Annexure III) before Tr.A. 4/2007 -2- the Family Court, Thiruvananthapuram for a decree declaring that there is no legal and valid marriage between the parties. He had filed counter claim praying for a decree of divorce. Finally, her petition was dismissed and the counter claim was allowed and consequently the marriage has been dissolved. Referring to the averments in Annexure III, learned counsel argued that she had been residing at Thiruvananthapuram and therefore the claim that she is residing within the jurisdiction of Family Court, Thodupuzha while filing Annexure I, cannot be correct. Learned counsel also pointed out that she might be living now in Thirunelveli along with the said Sajeeb and hence there are no bonafides in opposing the transfer sought by the appellant to the Family Court, Kollam. 4. Admittedly, O.P.(Guardian) No.54/2006 is one filed seeking to declare her as the guardian of the minor. It is clearly stated in paragraph 11 that the minor was ordinarily residing at the house of the respondent in Thodupuzha Taluk, within the jurisdiction of the Family Court, Thodupuzha. The allegation in paragraph 6 of Annexure I is that while the minor was in the care and custody of the mother of the respondent herein, the child was forcibly taken away by the appellant along with some 'gundas'. 5. The question is only whether the view taken by the learned Single Tr.A. 4/2007 -3- Judge in the circumstances, needs any interference. The learned Single Judge was pleased to take the view that when convenience of the parties is taken into consideration, the convenience of the mother of the child will out weigh that of the father. It cannot be said that the said view is perverse. 6. Learned counsel for the respondent relied upon the decision of the Hon'ble Supreme Court in Priyanka Batra v. Manish Batra ((2005) 12 SCC 236) taking the view that the convenience of the wife is to be preferred over the convenience of the husband. Be that as it may, the petitioner is now not in this country and he is appearing only through the power of attorney holder also. 7. Judged in the light of the above facts, we find that the circumstances pointed out by learned counsel for the appellant to show lack of bonafides on the part of the respondent herein, are not relevant for considering the issue of transfer. As held by the Supreme Court, the convenience of the wife is to be given preference and in any case presently the husband is not in station also. There is no case regarding the inconvenience to the power of attorney. Learned single judge has rightly Tr.A. 4/2007 -4- dismissed the transfer application. We affirm the same and dismiss the appeal without any order as to costs. (Kurian Joseph, Judge.) (T.R. Ramachandran Nair, Judge.)