IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 Tr.P(C).No. 99 of 2011() ------------------------ OP (DIVORCE) NO.297/2008 of FAMILY COURT, THIRUVALLA .................... PETITIONER/RESPONDENT ----------------------------------------- MR.SUSAN,AGED 66 YEARS, D/O.LATE MR.JACOB MUTHALAY,TC 12/1072, SRA -12, BARTON HILL,KUNNUKUZHI PO, THIRUVANANTHAPURAM. BY ADV. SMT.BEENA JOHN RESPONDENT(S): PETITIONER --------------------------------------------- MR.ABRAHAM PHILIP, AGED 70 YEARS, S/O.LATE REV.ABRAHAM,KONNAYIL HOUSE, KARUVATTA, PERINGANADU VILLAGE,ADOOR 689 549. ADV. SRI.R.KISHORE FOR R SRI.G.HARIPRASAD SRI.ARUN BABU THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------- Tr.P.(C).No.99 of 2011 --------------------------------------- Dated this the 14th day of June, 2011 O R D E R The petitioner, the wife of the respondent, prays for transfer of O.P.No.297 of 2008 pending before the Family Court, Thiruvalla to the Family Court, Thiruvananthapuram. 2. The averments in the Transfer Petition would disclose the following facts. The marriage between the parties took place in 1976. In 1977, the husband filed an Original Petition for judicial separation which was dismissed. Later in 1991, he filed O.P.No.29 of 1991 before the District Court, Pathanamthitta, for dissolution of marriage on the ground of adultery, cruelty and desertion. That Original Petition was dismissed. The husband filed an appeal challenging that order. The High Court dismissed the appeal. Later, he filed an application in O.P.No.29 of Tr.P.(C) No.99/2011 2 1991 for a direction to conduct the DNA test to determine the paternity of the son. That application was dismissed and it was confirmed in revision by the High Court. In 2003, the respondent filed O.P.No.1353 of 2003 before the Family Court, Thiruvalla for a declaration that the marriage between the petitioner and the respondent is null and void. That case was transferred to the Family Court, Thiruvananthapuram and later it was dismissed. At last, the respondent filed O.P. (Divorce) No.297 of 2008 before the Family Court, Thiruvalla for divorce on the ground of incompatibility. That Original Petition was once dismissed for default, but later restored to file. 3. The petitioner is aged 66 years and the respondent is aged 70. Both are old and both of them say that they are suffering from several ailments. 4. The petitioner(wife) belongs to Thiruvananathpuram Tr.P.(C) No.99/2011 3 and the respondent belongs to Adoor in Pathanamthitta District. It is stated by the petitioner that she is not in a position to undertake a travel from Thrivananthapuram to Thiruvalla to attend the Family Court, Thiruvalla. The counsel for the respondent says that if the case is transferred to the Family Court, Thiruvananathapuram, he would be put to great prejudice. A decision has to be taken in the Transfer Petition considering the comparative hardship that would be caused to the parties if the case is transferred from one court to the other or if the case is not transferred. Considering the comparative hardship, I am of the view that the hardship that would be caused to the petitioner, if the case is not transferred from the Family Court, Thiruvalla to the Family Court, Thiruvananthapuram would be greater than the hardship that would be caused to the respondent if the case is transferred to the Family Court, Thiruvananthapuram. 5. The Supreme Court in Sumita Singh vs. Kumar Tr.P.(C) No.99/2011 4 Sanjay and another (2001 (10) SCC 41), Rajwinder Kaur vs. Balwinder Singh (2003(11) SCC 726) and Mangla Patil Kale vs. Sanjeev Kumar Kale (2003(10) SCC 280) held that the inconvenience caused to the wife, if no transfer is made, should be taken note of. Taking into account all the facts and circumstances of the case, I am of the view that the Transfer Petition is liable to be allowed. Accordingly, The Transfer Petition is allowed. O.P.No.297 of 2008 pending before the Family Court, Thiruvalla shall stand transferred to the Family Court, Thiruvananathpuram. The Family Court, Thiruvalla shall transmit the records of the case to the Family Court, Thiruvananthapuram. The learned counsel appearing for the respondent submitted that a direction may be issued to the Family Court, Thiruvananthapuram to exempt the respondent from personal appearance except on those days when his presence is absolutely essential. The learned counsel for the Tr.P.(C) No.99/2011 5 petitioner also made a similar submission. The Family Court need not insist on the presence of either the petitioner or the respondent unless their presence before court is absolutely essential. K.T.SANKARAN JUDGE csl