IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 Tr.P(C).No. 208 of 2010() ------------------------- OP.281/2009 of FAMILY COURT, PALAKKAD .................... PETITIONER(RESPONDENT IN THE COURT BELOW) ------------------------------------------------------------- N.K.SUBITHA, D/O.SREENIVASAN, AGED 25 YEARS, 38/130B, LAVAYNA ATTHANIKKAL, PUTHIYANGADI, EDAKKAD, WEST HILL, PO, KOZHIKODE. BY ADV. SRI.S.SANTHOSH KUMAR (BALARAMAPURAM) RESPONDENT( PETITIONER IN THE COURT BELOW). --------------------------------------------- AJIDAS, S/O.APPUKUTTAN, VALIYAVEEDU, KUNNATHURMEDU, PALAKKAD TALUK, PALAKKAD DISTRICT-678013 ADV. SRI.VINOD SINGH CHERIYAN FOR R SRI.R.SUDHISH FOR R THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2010 ALONG WITH Tr.P.C.No.216 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Tr.P(C).Nos.208 and 216 of 2010 --------------------------------------- Dated this 04th day of November, 2010 ORDER These petitions are for transfer of O.P.Nos.281 of 2009 and 404 of 2010, respectively from Family Court, Palakkad to Family Court, Kozhikode. O.P.No.281 of 2009 is filed by the respondent/husband for restitution of conjugal rights while O.P.No.404 of 2010 is filed for custody of the girl child aged about 1½ years who is now in the care and custody of petitioner/wife. Petitioner states that she is a resident of West Hill, Kozhikode, and if that the cases are tried in Family Court, Palakkad she has to travel about 150kms to contest the cases. Since one of the cases concerned custody of 1½ year girl child, she may also have to take the child to the court travelling all the distance. It is stated that petitioner/wife does not have the physical or financial capacity to go to Palakkad to contest the cases. Petitioner had filed M.C.No.380 of 2009 in Family Court, Kozhikode and obtained a favourable order for maintenance. It is in these circumstances that petitioner wants the cases to be transferred to Family Court, Kozhikode. Tr.P(C).Nos.208 and 216 of 2010 : 2 : 2. Petitions are opposed by the respondent. According to the respondent, attempt of petitioner is to take undue advantage of certain observations Family Court, Kozhikode has made while deciding M.C.No.380 of 2009 to scuttle the request of respondent for restitution of conjugal rights and for custody of the child. Learned counsel contends that the order in M.C.No.380 of 2009 is under challenge in this court in revision. 3. The Supreme Court 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) stated that while considering request for transfer in matrimonial proceedings convenience of the wife has to be looked into. It is not disputed before me that petitioner/wife is aged 25 years and a resident of West Hill, Kozhikode. The Family Court, Kozhikode is situated about 5 kms away from West Hill. If the cases are tried at Palakkad petitioner has to travel not less than 150kms by bus. Since one of the cases involves custody of the girl child aged 1½ years she may have to take the child also to Palakkad, traveling all the distance. Since petitioner is a lady aged 25 years it is quite possible that she has to be accompanied by some relative which involves expenses also. Respondent is a Tr.P(C).Nos.208 and 216 of 2010 : 3 : resident of Kunnathurmedu, in Palakkad Taluk. No doubt, if the cases are transferred to Kozhikode, it will cause some inconvenience to him but that could be reduced by directing that he need appear in the transferee court only when his physical presence is essential. 4. So far as the apprehension of respondent that observation allegedly made in the order in M.C.No.380 of 2009 may be used against him in deciding the original petitions is concerned, I am sure that these cases will be decided on the facts, evidence and circumstances involved and if respondent has a contention that the observation in the order in M.C.No.380 of 2009 cannot be used against him, it is open to him to address arguments in that line in the transferee court. Having regard to the circumstances stated I am persuaded to think that comparative hardship is more on the petitioner/wife if request for transfer is not allowed than the inconvenience that may be caused to the respondent in case transfer is allowed. In the circumstance I am inclined to allow these petitions. Resultantly these petitions are allowed in the following lines. (i) O.P.Nos.281 of 2009 and 404 of 2010 are withdrawn from Family Court, Palakkad and made over to Family Court, Tr.P(C).Nos.208 and 216 of 2010 : 4 : Kozhikode for trial and disposal. (ii) The transferor court shall transmit records of the cases to the transferee court with due intimation to counsel on both sides as to the date of appearance in transferee court. (iii) It is made clear that except when physical presence of respondent/husband is required in the transferee court, he can appear through counsel. (iv) The transferee court shall, as far as possible post all the cases on the same dates. (THOMAS P JOSEPH, JUDGE) Sbna/-