IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 Tr.P(C).No. 126 of 2009() ------------------------- OP.210/2009 of FAMILY COURT,KOLLAM .................... PETITIONER: ------------------------------ NEETHA JACOB, D/O.T.J.JACOB, AGED 28 YEARS, RESIDING AT THOTTIYIL HOUSE, MEENADOM P.O., MEENADOM KARA AND VILLAGE, KOTTAYAM TALUK AND DISTRICT. BY ADV. SRI.T.MADHU SRI.SAJI JACOB RESPONDENT(S): --------------- BIJU R., AGED 35 YEARS, S/O.RAJAN, KUNNAKKARA MANJU BHAVAN HOUSE, PULAMON KARA, PULAMON P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT. ADV. SRI.SYAM J SAM FOR R1 THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Tr.P.(C).NO.126 OF 2009 () ----------------------------------- Dated this the 17th day of July, 2009 O R D E R This petition is filed under Section 24 of the CPC. Petitioner is the wife, and respondent the husband. Wife has filed two petitions, O.P.Nos.333/2009 and 334/2009 before the Family Court, Kottayam. The former for dissolution of marriage and the latter for return of the ornaments and valuables allegedly retained by the husband. The husband has filed another petition for restitution of conjugal rights as O.P.No.210/2009 before the Family Court, Kottarakkara. Wife seeks transfer of the above petition from the Family Court, Kottarakkara to the Family Court, Kottayam, where the two petitions filed by her are pending. 2. Notice being given, the respondent has entered appearance through counsel. The learned counsel for the respondent opposed the application submitting that in 2006 TPC.126/09 2 the respondent met with an accident and eversince he has to suffer a lot of difficulties. He is unable to travel in view of the physical ailments suffered. The mother of the husband is also impleaded as one of the co-defendant along with him in O.P.No.334/2009 filed by the wife and she is pretty old and suffering from various ailments, according to the counsel. It is also submitted that the application moved by the husband was earlier in point of time, and so much so, the request for transfer may not be entertained. On the other hand, the learned counsel for the petitioner submitted that the wife is attending to the needs of a child aged four years born out of the wedlock and it is practically impossible for her to attend to the Family Court at Kottarakkara. She has filed a petition for maintenance for herself and the child is also highlighted to contend that she has no means even for her sustenance in life. Having regard to the submissions made and taking note of the facts and circumstances presented, I find the interest of the minor child is to be given predominance in considering the question of transfer of the matrimonial proceedings pending before different courts. The child is admittedly under the care TPC.126/09 3 and custody of the mother. Naturally the separation of the spouses might have had its impact on the child even at his infancy. Depriving him of the care of the mother driving her to attend to a family court at a far place to defend the case launched by her husband would have distress consequences on the growth of the child. Further more, the grievance canvassed by the wife that she has no means, and therefore, she had been compelled to file a claim for maintenance cannot also be lost sight of. If the husband is having physical ailments, he can bring it to the notice of the Family Court Judge and seek for his personal exemption, otherwise than when his presence is absolutely required for an effective adjudication of the disputes raised in the petition. So far as the mother of the respondent is concerned, she is impleaded as a defendant only in a civil suit and normally her presence may not be required before the court. So much so, taking note of the facts and circumstances involved, I find that the transfer of O.P.No.210/2009 on the file of the Family Court, Kottarakkara to the Family Court, Kottayam, where the other two petitions are pending is essential to advance the ends of TPC.126/09 4 justice and it is ordered accordingly. The Judge, Family Court, Kottarakkara shall transmit the records of the above case to the transferee court without delay. S.S.SATHEESACHANDRAN JUDGE prp