IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 Tr.P(C).No. 84 of 2009 ------------------------------- OP.NO.27/2007, I.A. NOS.23/2009, 21/2009 ALONGWITH O.P.(DIV) 13/06 OF FAMILY COURT, THODUPUZHA. .................... PETITIONER/ RESPONDENT NO.1: ------------------------------------------------- MERLY @ THRESSIAMMA, KOLLAMPARAMBIL HOUSE, COMBAMETTU P.O, KARUNAPURAM VILLAGE NOW RESIDING AT KOLLAMPARAMBIL HOUSE, ELAMKULAM VILLAGE, PONKUNNAM. BY ADV. MR.A.K.HARIDAS. RESPONDENT: --------------------- SAJI.K.JOSEPH @ ANTONY,S/O. JOSEPH, AGED 33 YEARS, KADALIKKATTIL HOUSE, PERUMTHOTTY P.O, THOPRAMKUDY, VATHIKUDY VILLAGE,IDUKKI DISTRICT. BY ADVS. MR.T.J.MICHAEL. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2009, ALONG WITH TR.P(C). NO.139/2009 ,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- Tr.P.C.Nos.84 & 139 of 2009 --------------------------------- Dated this the 30th day of June, 2009 O R D E R The transfer petition 84/2009 is filed by the wife and the other petition 139/2009, by the husband. The wife seeks transfer of O.P.No.27/2007 on the file of the Family Court, Thodupuzha, a proceeding initiated by the husband claiming damages. She has also sought for in the same petition transfer of the petition filed by her for setting aside the ex-parte decree passed in O.P.13/2006 that too on the file of the Family Court, Thodupuzha by which the husband obtained a decree of divorce. She is residing in Ettumanoor and it is highly inconvenient for her to attend the case at Thodupuzha court, which is situate nearly 75 km away from her residence, is one of the grounds canvassed for transfer. She has a further case that she has to look after her aged mother and there is none to assist her to prosecute the cases. She has also filed two cases against the husband and both are pending before the Family Court, Ettumanoor. The cases are M.C.No.70/2009, a proceeding under Section 125 CPC seeking maintenance from the husband alleging that he has neglected to Tr.P.C.Nos.84 & 139 of 2009 2 maintain her and O.P.234/2009 for restitution of conjugal rights. After receipt of notice in the above petition, as a sequel thereto, the husband has filed the other transfer petition seeking transfer of the cases filed by the wife as M.C.No.170/2009 and O.P.234/2009 to the Family court, Thodupuzha, contending no inconvenience will be caused to the wife by such transfer. 2. I heard the counsel on both sides. 3. Having regard to the submissions made and also the facts and circumstances presented, I find that the proceedings taken by the wife for setting aside the ex-parte decree passed in O.P.No.13/2006 which are now pending before the Family court, Thodupuzha cannot be transferred to any other court as that court will be the most competent court to determine whether she has sufficient cause for non-appearance on the hearing of that O.P. However, if her petition is allowed, it is open to her to seek for transfer of that case also to the Family Court, Ettumanoor. Serious allegations imputing chastity of the wife are narrated in the counter filed by the husband opposing the application for Tr.P.C.Nos.84 & 139 of 2009 3 transfer, of which reference was made by his counsel as a circumstance dis-entitling the wife from seeking the transfer as prayed for in her petition. In considering the question of transfer, comparative hardship of the parties is the governing factor, and the merit of the case whatever be the nature of the allegations raised by the parties in the matrimonial dispute has to be adjudicated by the court after affording opportunity to both sides to lead evidence. From the facts presented, it appears, the wife who is having her permanent abode at Ettumanoor, at present is looking after her old mother. Other than her sister, who is stated to be accompanying her whenever cases are posted in the Thodupuzha court, she has none to seek assistance in her case, I do not find any reason to doubt the veracity of the case so presented by the wife. Such being the position, the interest of justice demand the transfer of O.P.No.27/2007, the suit filed by the husband claiming damages from the wife to the Family Court, Ettumanoor where the other two proceedings M.C.No.70/2009 and O.P.No.234/2009 filed by the wife are pending for adjudication. Ordered accordingly. Tr.P.C.Nos.84 & 139 of 2009 4 Send a copy of the order to both the Family Courts forthwith, and the Family Court, Thodupuzha is directed to transmit the records of O.P.No.27/2007 to the Family Court, Ettumanoor without delay. S.S.SATHEESACHANDRAN, JUDGE. bkn/-