IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 Tr.P(C).No. 45 of 2010() ------------------------ OP.1197/2009 of FAMILY COURT,THIRUVANANTHAPURAM .................... PETITIONER ------------------------------ AJEESHA AKBAR P.A., D/O. P.A.AKBAR, PADATHARA HOUSE, VYLOPPILLI LANE, AZAD ROAD, KALOOR, KOCHI-17. BY ADV. SRI.BASANT BALAJI SRI.R.GOPAN RESPONDENT(S): --------------- NAJEEBUDHEEN, TC 13/1885(7), KALAKAUMUDI ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) No.45 of 2010 -------------------------------------- Dated this the 5th day of August, 2010. ORDER Since notice to respondent was returned with the endorsement that “addressee left” this Court directed that notice on the respondent be served on the counsel appearing for him in the court below. Accordingly, notice is served on the counsel and counsel for petitioner has filed a memo to that effect. Service of notice on counsel since the main proceeding is pending in the court below is sufficient as per Rule 59 of the Rules of the High Court of Kerala, 1971. Hence there is sufficient service on respondent. 2. This petition is filed by the wife seeking transfer of O.P. No.1197 of 2009 from Family Court, Thiruvananthapuram to Family Court, Ernakulam. That is a petition filed by the respondent/husband for restitution of conjugal rights. In the meantime petitioner/wife filed M.C.No.372 of 2009 seeking maintenance and O.P.No.2015 of 2009 for dissolution of marriage against respondent in Family Court, Ernakulam. Those proceedings are pending in the latter court. It is stated that petitioner is a resident of Kochi and she has to travel a long distance from her place of residence to Thiruvananthapuram to contest the case pending in Family Court, Thiruvananthapuram. It is also stated that since two cases are pending in Family Court, Ernakulam it is necessary that all the cases are consolidated in the same court and tried and disposed of together. Tr.P.(C) No.45/2010 2 Learned counsel requested that in the circumstances O.P.No.1197 of 2009 may be transferred to Family Court, Ernakulam. 3. 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. True that does not mean that inconvenience if any of the husband need not be considered. 4. Petitioner/wife is staying at Kochi and if the case is continued at Family Court, Thiruvananthapuram, she has to travel a long distance. She may have to be accompanied by some relatives which involves huge expenses. Moreover two cases are pending in Family Court, Ernakulam. It is necessary that all the cases are consolidated in the same court for proper decision of the case. Considering the circumstances stated by learned counsel and also the fact that two proceedings initiated by petitioner/wife are pending in Family Court, Ernakulam I am inclined to allow this petition. Resultantly this petition is allowed in the following lines: i. O.P. No.1197 of 2009 pending in Family Court, Thiruvananthapuram is withdrawn from that court and made over to Family Court, Ernakulam for trial and disposal. Tr.P.(C) No.45/2010 3 ii. The transferor court shall, while transmitting records of the case to the transferee court fix date for appearance of parties in the transferee court with due intimation to the counsel on both sides. iii. It is made clear that except when physical presence of respondent is required in the transferee court it is open to him to appear through counsel. iv. Transferee court shall ensure that as far as possible all the cases are posted on the same dates. THOMAS P.JOSEPH, Judge. cks