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. 335 of 2011() ------------------------- OP.764/2011 of FAMILY COURT,ERNAKULAM TO FAMILY COURT,ALAPPUZHA .................... PETITIONER (S): -------------------------- NISHA, AGED 26 YEARS, D/O. LATE PARAMESWARAN, KAVAREZHATHU HOUSE, KUTHIATHODU.P.O, ALAPPUZHA, NOW RESIDING AT ATTUKAL HOUSE, VALIYAVELI, THUMBA, THIRUVANANTHAPURAM. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): --------------------------- SHIBU, S/O. BOSE, THANDASERI COLONY, VYPEEN KARA, ELAMKUNNAPUZHA VILLAGE, ELAMKUNNAPPUZHA PO, ERNAKULAM- 682 503. BY ADV. SRI.P.BABU KUMAR THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss Tr.P(C)NO.335/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE-I- TRUE COPY OF THE COMPLAINT IN M.C 81/2010 FILED BY THE PETITIONER BEFORE THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHERTHALA. ANNEXURE-II-TRUE COPY OF THE PETITION IN O.P. NO. 764/2011 FILED BEFORE THE FAMILY COURT, ERNAKULAM BY THE RESPONDENT. RESPONDENTS' ANNEXURES: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) No.335 of 2011 -------------------------------------- Dated this the 2nd day of November, 2011. ORDER This petition is filed by the wife seeking transfer of O.P.No.764 of 2011 from the Family Court, Ernakulam to the Family Court, Alappuzha. That is a petition filed by the respondent-husband for restitution of conjugal rights. Petitioner states that though her parental home is at Kuthiyathodu, she is presently staying at Thiruvananthapuram in connection with the employment of her mother. Petitioner has filed M.C.No.81 of 2010 in the court of learned Judicial First Class Magistrate, Cherthala under the Protection of Women from Domestic Violence Act. It is stated that petitioner finds it difficult to travel the long distance and contest the case. 2. Petition is opposed by the respondent. It is contended that since the parental home of petitioner is at Kuthiyathodu, Ernakulam is nearer to that place than to Alappuzha and hence request for transfer to the Family Court, Alappuzha may not be entertained. Learned counsel submits that the distance from Kuthiyathodu to Alappuzha is 45 kms., while to Ernakulam it is only 25 kms. Tr.P(C)No.335/2011 2 3. In response to that contention learned counsel for petitioner submits that the Family Court, Alappuzha has a Camp Court at Cherthala and that if the case is transferred to Alappuzha, it could be taken up in the Camp Court at Cherthala and that would be convenient for petitioner since her parental home at Kuthiyathodu to Cherthala is only 15 kms. 4. The Supreme Court in Sumitha Singh v. Kumar Sanjay and another (AIR 2002 SC 396) and Arti Rani v. Dharmendra Kumar Gupta [(2008) 9 SCC 353] has held that while considering the request for transfer of matrimonial proceedings convenience of the wife has to be looked into. 5. It is not disputed that M.C.No.81 of 2010 filed by petitioner under the Protection of Women from Domestic Violence Act is pending in the court of learned Judicial First Class Magistrate, Cherthala. True that Alappuzha is about 45 kms. away from the parental home of petitioner at Kuthiyathodu. But if the case is taken up in the Camp Court at Cherthala the distance from that place to petitioner's parental home is 15 kms. If the case is taken up in the Camp Court at Cherthala that will reduce the inconvenience of respondent also to a greater extent since the distance from his place of residence to Cherthala is much lesser than to Alappuzha. Petitioner is aged about 26 years and presently staying with Tr.P(C)No.335/2011 3 her mother at Thiruvananthapuram. Petitioner, if the case is transferred to Alappuzha and taken up in the Camp Court at Cherthala could attend the court staying in her parental home at Kuthiyathodu. In these circumstances the comparative hardship is more on petitioner if the request for transfer is not allowed. The inconvenience that may be caused to the respondent could be reduced by directing that he could appear in the transferee court through counsel except when his physical presence is required. In these circumstances I am inclined to allow the request for transfer. Resultantly this petition is allowed as follows: (i) O.P.No.764 of 2011 pending in the Family Court, Ernakulam is withdrawn from that court and transferred to the Family Court, Alappuzha for trial and disposal. (ii) The transferor court while transmitting records of the case to the transferee court shall fix the date for appearance of parties in the transferee court with due intimation to the counsel for both parties. (iii) Respondent can appear in the transferee court through counsel except when his physical presence is required. (iv) It will be open to either of the parties to request the Family Court, Alappuzha to post the case in the Camp Court at Cherthala and if any such request is made, learned Judge shall consider that request and pass Tr.P(C)No.335/2011 4 appropriate orders. I.A.No.2272 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks