IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 TR.P(C).NO. 286 OF 2010() --------------------------------------- OP.1308/2010 OF FAMILY COURT,ERNAKULAM .................... PETITIONER: -------------------- SRI.ANJU THOMAS, W/O.ANJANEYAN AGED 29 YEARS, PINKY BHAVAN, MOOZHIKKAL CHELAVOOR PO, CALICUT,KERALA 673 571,(REP.BY POWER OF ATTORNEY HOLDER MRS,.ALICE THOMAS W/O.M.T. THOMAS,PINKY BHAVAN, MOOZHIKKAL CHELAVOOR PO, CALICUT, KERALA,673 571. BY ADV. SRI.NIRMAL. S RESPONDENT(S): ------------------------- ANJANEYAN , AGED 30 YEARS, S/O.MR.M.N.KARTHA,B/4.CENTRAL ZONE APARTMENTS, AMMAN KOVIL ROAD, ERNAKULAM-682 035. ADV. SRI.T.K.VIPINDAS FOR R SRI.K.V.SREE VINAYAKAN FOR R THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Tr.P(C) No.286 of 2010 ==================================== Dated this the 13th day of October, 2010 O R D E R This petition is filed by the wife seeking transfer of O.P.No.1308 of 2010 from Family Court, Ernakulam to Family Court, Kozhikode. That is a petition for restitution of conjugal rights filed by the respondent-husband. Petitioner states that though she is working in the United Kingdom as a Lecturer is represented by her mother who is a Government servant at Kozhikode and hence it is difficult for the mother to travel all the distance from Kozhikode to Ernakulam. Further case of petitioner is that she is facing threat from the respondent and that if she goes to Ernakulam her life will be in danger. Respondent has a different version as to the situation which led to the respondent filing O.P. No.1308 of 2010 in Family Court, Ernakulam. He states that for the purpose of getting an employment abroad on the premise that petitioner is single and to facilitate that, petitioner filed O.P. No.250 of 2008 in Family Court, Kozhikode for a decree for divorce and for the said reason there happened to be an ex parte decree in favour of petitioner which later was set aside on Tr.P(C) No.286 of 2010 -: 2 :- the application of respondent. Since petitioner failed to attend counselling as ordered by the Family Court, O.P. No.250 of 2008 was dismissed. During the time that petition was pending respondent filed Annexure-7, petition in this Court for transfer of that case to Family Court, Ernakulam on health grounds. It is while Annexure-7 was pending that O.P. No.250 of 2008 was dismissed for default. Thereon on Annexure-7, petition was dismissed as not pressed. Petitioner has now filed application for restoration of O.P. No.250 of 2008. These allegations are of course denied by the petitioner who contends that respondent had ill-treated and subjected her to inhuman acts. Learned counsel contends that if petitioner goes to Ernakulam her life will be in danger. 2. I am not going into the allegations and counter allegations made by both sides in regard to the circumstances under which cases happened to be filed in the respective Family Courts. Now I am concerned with the request for transfer of O.P. No.1308 of 2010 from Family Court, Ernakulam to Family Court, Kozhikode. Fact remains that petitioner is working in the United Kingdom in connection with her employment there. Hence whether the case is tried in Family Court Ernakulam or Kozhikode, Tr.P(C) No.286 of 2010 -: 3 :- will not make any difference so far as she is concerned. Petitioner is represented by her mother as Power of Attorney holder. No doubt she is stated to be a Government servant working at Kozhikode and that it is not possible for her to travel all the distance to Ernakulam and contest the case. It is pointed out by learned counsel for respondent, and it is also not disputed before me that along with mother, the father of petitioner is also a Power of Attorney holder. He is a retired Government servant. True he may also find it difficult to travel the distance from Kozhikode to Ernakulam. On the other hand there is the inconvenience pleaded by the respondent-husband. He has produced Annexures R1 to R3 to show his illness. The MRI Scan report of Lumbo-Sacral Spine of respondent is to the following effect: “Loss of normal lumbar lordosis is seen. Vertebral bodies reveal normal signal intensity without any evidence of a focal lesion. The L4/L5 disc is degenerated and shows moderate posterior protrusion with capsular break indenting the thecal sac and both L5 nerve roots. Rest of the discs show Tr.P(C) No.286 of 2010 -: 4 :- no significant bulging/herniation. Facet joints and ligamentum flavum do not reveal any abnormality. Lower end of the spinal code, cauda equina and filum terminale appear normal. Prevertebral soft tissues and vascular structures appear normal. Bony spinal canal measurements are within normal limits.” It is also seen that the Medical Officer reported that respondent has undergone a conservative management with analgesics and physiotherapy. He has been advised to restrict strenuous movements and also avoid long distance travels until he has undergone surgery. Going by the report of the Medical Officer dated October 10, 2010 for correction of defects to L4/L5 discs respondent requires a surgery and he has been advised not to undertake strenuous movements and long distance travels. It is in the circumstances that respondent had filed Annexure-7, petition for transfer of O.P. No.250 of 2008 from Family Court, Kozhikode to Ernakulam which petition was later dismissed as not pressed since at the time that petition came up for hearing O.P. No.250 of 2008 had been dismissed for default. 3. The Supreme Court in Sumitha Singh v. Kumar Tr.P(C) No.286 of 2010 -: 5 :- 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. That of course does not mean that inconvenience of the husband has to be ignored for whatever reasons. If the case is transferred to Kozhikode respondent has to undertake long and strenuous continuous journey which could aggravate his health problems. So far as petitioner is concerned it make no difference whether case is tried at Family Court, Kozhikode or Ernakulam. There is no case or evidence that petitioner's father, one of her Power of Attorney holders who is a retired Government servant has any difficulty to go to Ernakulam. Considering the comparative hardship the parties have to suffer, I am satisfied that the hardship which respondent has to suffer is more than the hardship petitioner or even her Power of Attorney holder has to suffer. The difficulty that may be caused to the petitioner can be reduced by permitting her or Power of Attorney holder to appear through counsel except when her/their physical presence is required. Hence the prayer made by petitioner cannot be allowed. Tr.P(C) No.286 of 2010 -: 6 :- Resultantly, the petition is dismissed with the direction that except when physical presence of petitioner or her Power of Attorney holders in court is necessary she/they could appear in court through counsel. THOMAS P. JOSEPH, JUDGE. vsv