IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 Tr.P(C).No. 346 of 2011() ------------------------- OPHMA.1466/2011 of FAMILY COURT, TRIVANDRUM .................... PETITIONER/RESPONDENT: --------------------------------------- SYAMA, AGED 22 YEARS, D/O.MINI KRISHNA, REVATHY BHAVAN, NEERAVIL, PERINADU P.O., KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT/PETITIONER: ------------------------- KANNAN, AGED 27 YEARS, S/O.RAVINDRAN, "SREEBHARATH", HOUSE NO.33, RIVER GARDENS, NEERAMANKARA, KAIMANAM P.O., NEMOM VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 040. ADV. SRI.BIJU BALAKRISHNAN FOR R1 THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Tr.P(C).No. 346 of 2011 2 APPENDIX PETITIONER(S) EXHIBITS ANNEXURE-A1 : A TRUE COPY OF THE PETITION DATED 12.09.2011 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. ANNEXURE-A2 : A TRUE COPY OF THE O.P.NO.1166/2011 BEFORE THE FAMILY COURT, KOLLAM. ANNEXURE-A3 : A TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE PETITIONER BEFORE THE FIRST CLASS MAGISTRATE COURT, KOLLAM. RESPONDENTS' EXHIBITS : NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- Tr.P(C).No.346 of 2011 --------------------------------------- Dated this 02nd day of November, 2011 ORDER This petition is filed by the petitioner seeking transfer of O.P(H.M.A).No.1466 of 2011 from the Family Court, Thiruvananthapuram to the Family Court, Kollam. That is a petition filed by the respondent for a declaration that the marriage is null and void. Petitioner has filed O.P.No.1166 of 2011 before the Family Court, Kollam for recovery of money etc. Yet another proceeding initiated by the petitioner, a criminal prosecution, is pending before the Judicial First Class Magistrate's Court, Kollam against the respondent for offences punishable under Secs.498A and 323 r/w Sec.34 of the Indian Penal Code. Petitioner states that she is aged about 22 years, is residing at Perinadu, in Kollam district and that she has to travel a long distance to contest the case in the Family Court, Thiruvananthapuram. Learned counsel for petitioner requested that in the circumstance, the case pending in Family Court, Thiruvanathapuram may be transferred to Family Court, Kollam. 2. Learned counsel for respondent while opposing the petition stated that petitioner is now working at Bangalore and Tr.P(C).No.346 of 2011 -: 2 :- that she has filed O.P.No.1166 of 2011 through her power of attorney holder with whom, according to the respondent, petitioner has illicit connection. That original petition was filed after respondent filed O.P(H.M.A).No.1466 of 2011, with the only intention to harass the respondent. In such situation request for transfer cannot be allowed. Reliance is placed on the decision in Anindita Das Vs. Srijit Das ((2006)9 SCC 197) where, in paragraph 3, the Supreme Court has referred to the leniency at one time Supreme Court has shown to the ladies in the matter of matrimonial proceeding and which revealed that a large number of petitions for transfer is filed by the women taking advantage of the leniency. The Supreme Court has observed that leniency shown to the women is being misused by them. 3. The question whether the provision for transfer is being misused has to be decided with reference to the facts of each case. In Sumitha Singh Vs. Sanjay Kumar & Another (AIR 2002 SC 396) and Arti Rani Lrs. Pinki Devi and Another Vs. Darmendra Kumar Gupta (2008(9) SCC 353) the Supreme Court took the view that request for transfer made by the wife has to be allowed as far as possible. True that it does not mean that in every case request made by the wife should be allowed. It should depend on the facts of the case. In the present case, petitioner, aged 22 years is a permanent resident of Tr.P(C).No.346 of 2011 -: 3 :- Perinadu, in Kollam district. Assuming that she is working in Bangalore, she has to come down to Thiruvananthapuram to contest the case. May be for the time being she is represented by a power of attorney but for giving evidence she has to come down to Thiruvananthapuram. Since her parental home is at Perinadu, it is convenient to her if the case is brought to Family Court at Kollam. I must bear in mind that whatever be the intention thereof, O.P.No.1166 of 2011 filed by the petitioner is pending in Family Court, Kollam and until now, no request for transfer of that case is made by the respondent on any ground whatsoever. I think that it is appropriate that the cases are consolidated in the same Court. In the present case, I am satisfied that the cases could be consolidated in the Family Court, Kollam having regard to the fact that petitioner, aged 22 years is a resident of Perinadu. The inconvenience if any caused to the respondent can be reduced by directing that except when his physical presence is required he can appear in the transferee Court through counsel. Resultantly this petition is allowed in the following lines: (i) O.P(H.M.A).No.1466 of 2011 pending in Family Court, Thiruvanathapuram is withdrawn from that court and made over to Family Court, Kollam. The said case and O.P.No.1166 of 2011 shall be posted, as far as possible on the same dates. Tr.P(C).No.346 of 2011 -: 4 :- (ii) The transferor court shall transmit records of the case to the transferee court with due intimation to the counsel on both sides as to the date of appearance in the transferee court. (iii) It is made clear that except when physical presence of respondent is necessary it is open to him to appear through counsel in the transferee court. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-