IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 Tr.P(C).No. 309 of 2011() -------------------------------- OP.425/2011 of FAMILY COURT, ALAPPUZHA .................... PETITIONER/COUNTER PETITIONER. -------------------------------------------------- DIVYA KALADHARAN, S/O.MOHANKUMAR, AGED 28, THANNIYIL HOUSE, NADUMBHAGAM, CHAMPAKULAM P.O., ALAPPUZHA DISTRICT. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S): PETITIONER. ------------------------------------- KALADHARAN NAIR, S/O.SADASIVAN NAIR, AGED 38, MANIKANDA VILASAM, THAMARAKANDAM, THEKKADY, KUMALI VILLAGE,PEERUMEDU TALUK, IDUKKI DISTRICT-PIN-685 509. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss TPC.309/2011 APPENDIX PETITIONER'S ANNEXURES A1:- COPY OF THE OP 578/2011 PENDING BEFORE THE FAMILY COURT, ALAPPUZHA. A2:- COPY OF THE OP 425/2011 PENDING BEFORE THE FAMILY COURT, THODUPUZHA. RESPONDENT'S ANNEXURES NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) No.309 of 2011 -------------------------------------- Dated this the 8th day of November, 2011. ORDER This petition is filed by the wife seeking transfer of O.P.No.425 of 2011 from the Family Court, Thodupuzha to the Family Court, Alappuzha. That is a petition filed by the respondent-husband for restitution of conjugal rights. It is stated that petitioner has filed O.P.No.578 of 2011 in the Family Court, Alappuzha. Petitioner is a resident of Champakulam, in Alappuzha District while the respondent belongs to Thamarakandam, in Kumily Village, Peerumedu Taluk. It is stated that petitioner aged about 28 years has to travel the long distance to Thodupuzha to contest the case. She has also to look after her minor children. 2. Respondent has not appeared in spite of service of notice. It is not disputed that O.P.No.578 of 2011 filed by the petitioner is pending consideration before the Family Court, Alappuzha. Respondent has not so far requested for transfer of that case. 3. Since O.P.No.425 of 2011 is for restitution of conjugal rights and O.P.No.578 of 2011 is for divorce, it is necessary that both the cases are tried and disposed of by the same court. 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 Tr.P(C)No.309/2011 2 held that while considering the request for transfer of matrimonial proceedings convenience of the wife has to be looked into. 4. Having regard to the circumstances of the case I am inclined to think that comparative hardship is more on petitioner if the request for transfer is not allowed. The inconvenience that may be caused to the respondent could be reduced by directing that he could appear in the Family Court, Kannur through counsel except when his physical presence is required. I am inclined to allow the request for transfer. Resultantly this petition is allowed as follows: (i) O.P.No.425 of 2011 pending in the Family Court, Thodupuzha is withdrawn from that court and transferred to the Family Court, Alappuzha for trial and disposal. (ii) The transferor court while transmitting 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 for both parties. (iii) The transferee court shall post the cases - O.P.No.425 of 2011 (being transferred to that court) and O.P.No.578 of 2011 (pending in that court) as far as possible on the same dates. (iv) Respondent can appear in the transferee court through Tr.P(C)No.309/2011 3 counsel except when his physical presence is required. I.A.No.2085 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks