IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Tr.Appeal(C).No. 7 of 2008 AGAINST THE JUDGEMENT DATED 17.1.2008 OF THIS COURT IN TPC.23/2008 AS CONFIRMED BY ORDER DATED 27.5.2008 IN R.P.NO.528 OF 2008. APPELLANT: PETITIONER P.B. MINIMOL, PARAYIL HOUSE, MUDUKKAKUNNU.P.O, KOTTAYAM DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENT: RESPONDENT SURESH SABU, S/O. MADHAVAN, KURUMACKAL HOUSE, EDAMATTOM.P.O, KOTTAYAM, NOW EMPLOYED AS TEACHER, VAZHUNNVERS U.P. SCHOOL, KEEZHUR, IRITTY, KANNUR DISTRICT. BY ADVOCATE SRI.C.K.VIDYASAGAR ADV. SRI.T.I.ABDUL SALAM THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, ALONG WITH TPC NO. 28 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- TRANSFER APPEAL NO. 7 OF 2008 and TR. PETITION (CIVIL) NO. 28 OF 2008 ------------------------------------------------------------- Dated this the 21st October, 2008 JUDGMENT K.T.Sankaran, J. Transfer Appeal No.7 of 2008 is filed challenging the order passed by the learned single Judge in Tr.P.(C).No. 23 of 2008. Tr.P.(C) No.23 of 2008 was filed by Minimol (hereinafter referred to as the wife) to transfer O.P.No.547 of 2007 filed by Suresh Sabu (hereinafter referred to as the husband) to Family Court, Kottayam where O.P.No.1026 of 2007 filed by the wife is pending. Learned single Judge dismissed Tr.P.(C).No.23 of 2008. Though a Review Petition was filed by the wife seeking to review that order, the Review Petition was also dismissed by the order dated 27.5.2008. Tr.P.(C) No.28 of 2008 is filed by the husband to transfer O.P.No.1026 of 2007 filed by the wife before the Family Court, Kottayam at Ettumanoor to the Family Court, Kannur where O.P.No.547 of 2007, filed by the husband, is pending. 2. O.P.No.547 of 2007 was filed by the husband before the Family Court, Kannur for dissolution of marriage. O.P.No.1026 of 2007 was filed by the wife before the Family Court, Kottayam at Ettumanoor, claiming return of money and ornaments. According to the wife, both TRANSFER APPEAL NO.7/2008 & TR.P.(C) NO.28 OF 2008 :: 2 :: the cases should be tried by the Family Court, Kottayam at Ettumanoor, while, according to the husband, both the cases should be tried before the Family Court, Kannur. 3. The husband is working as a teacher in Kannur District. The wife is working in Wynad District. Both the parties belong to Kottayam District. It is stated by the wife that to reach the Family Court at Kannur, she has to travel long distance from her place of residence in Wynad District and she would not be in a position to go to the Family Court, Kannur and return home on the same day. There is nobody to take care of her at Kannur and necessarily she will have to stay in a hotel. The wife submits that if she were to attend the Family Court at Kannur, she would be put to untold miseries. It is also pointed out by the wife that since both the parties belong to a place in Kottayam District and since the witnesses to be examined in the case also belong to Kottayam District, it would be ideal if the cases are tried by the Family Court, Kottayam at Ettumanoor. On the other hand, the husband would submit that since the parties are working in Kannur District and Wynad District, it would not be proper to direct the cases to be tried by the Family Court, Kottayam at Ettumanoor. 4. Learned single Judge rejected the prayer made by the wife to transfer the case from Family Court, Kannur to the Family Court, TRANSFER APPEAL NO.7/2008 & TR.P.(C) NO.28 OF 2008 :: 3 :: Kottayam at Ettumanoor on the ground that as and when the wife gets a transfer to Kottayam, she can apply for a transfer of the case to the Family Court, Kottayam at Ettumanoor. Learned single Judge was under the impression that the case of the wife is that she would be getting a transfer and posting at a place in Kottayam District. It is also stated by the learned single Judge that the merits of the case were not considered while closing the Transfer Petition in the manner in which it was done. 5. Learned single Judge having not considered the merits of the case, it is only proper that the contentions of the parties are considered on the merits in this Transfer Appeal as well as in the Transfer Petition filed by the husband. It is well settled by the decisions of the Supreme Court that, as far as possible, the cases between spouses should be tried by the Family Court having jurisdiction over the area where the wife resides. The general convenience of the parties shall be taken note of at the time of transferring a case from one Family Court to another. In the present case, the parties belong to the places in Kottayam District. The marriage took place in Kottayam District. The persons who are to be examined as withnesses also belong to Kottayam District. If the cases are tried by the Family Court, Kottayam at Ettumanoor, the wife would be in a position to stay at her residence, though she has to travel from Wynad to Kottayam for attending the cases. Of course, the safety of the wife could be TRANSFER APPEAL NO.7/2008 & TR.P.(C) NO.28 OF 2008 :: 4 :: protected if the cases are tried by the Family Court, Kottayam at Ettumanoor. At the same time, it is true that inconvenience would be caused to the husband. As things stand, there is a case pending before the Family Court, Kottayam at Ettumanoor and another case pending before the Family Court, Kannur. To suit the general convenience of parties and to protect the safety of the wife in the matter of attending the Family Court, we are of the view that it would be ideal if both the cases are tried by the Family court, Kottayam at Ettumanoor. 6. Accordingly, we allow Transfer Appeal No.7 of 2008, set aside the order dated 17.1.2008 passed by the learned single Judge and allow Tr.P.(C) No.23 of 2008 filed by the wife. O.P.No.547 of 2007 filed by the husband before the Family Court, Kannur is transferred to the Family Court, Kottayam at Ettumanoor. Tr.P.(C) No.28 of 2008, filed by the husband is dismissed. Both the cases shall be tried and disposed of by the Family Court, Kottayam at Ettumanoor after conducting a joint trial. Considering the fact that both the parties are employed at far away places, the Family Court would consider their request to grant exemption from personal appearance on occasions where their presence is not absolutely essential. Both the parties would be entitled to apply before the Family Court for granting the necessary reliefs in this regard. The Family Court, Kottayam at Ettumanoor shall dispose of the cases as TRANSFER APPEAL NO.7/2008 & TR.P.(C) NO.28 OF 2008 :: 5 :: expeditiously as possible and, at any rate, within a period of six months. The parties shall appear before the Family Court, Kottayam at Ettumanoor on 17.11.2008. The Transfer Appeal and Transfer Petition are disposed of as above. Registry will send copy of this judgment to the Family Court, Kannur and the Family Court, Kottayam at Ettumanoor. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/