IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 Tr.P(C).No. 391 of 2010 TO TRANSFER OP.NO.147/2010 FROM THE FILE OF THE FAMILY COURT,ERNAKULAM TO THE FAMILY COURT, KOTTARAKARA. PETITIONER: SREEKALA @ KALA MURALIDHARAN, AGED 41 YEARS, W/O.MURALIDHARAN, RESIDING AT PERUMPILLIKALA PUTHENVEEDU, MYLOM P.O., INJAKKADU 691560, KOTTARAKKARA. BY ADV. SMT.I.S.LAILA RESPONDENT: MURALIDHARAN PILLAI, AGED 48 YEARS, S/O.P.P.PRABHAKARAN PILLAI, MOHANAVILASAM, POOVATTOR EAST, KALAYAPURAM P.O., KOTTARAKKARA, NOW RESIDING AT EDATHYMALAI, MUNRA 2, MULAVARIKAL ROAD, KONTHURUTHY, OPPOSITE ST.JOHN'S L.P.SCHOOL, KONTHURUTHY, THEVARA P.O.,KOCHI-13. BY ADV. SMT.J.SHEEBA MARIAM THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2011, ALONGWITH TR.P.(C) NO.392 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Tr.P.(Civil). Nos.391 & 392 OF 2010 ------------------------------------------------------ Dated this the 5th day of January, 2011 O R D E R Tr.P.(C) No.391 of 2010 is filed by Sreekala @ Kala Muralidharan, the wife of the respondent, seeking to transfer O.P.No.147 of 2010 pending before the Family Court, Ernakulam to the Family Court, Kottarakkara. Tr.P.(C)No.392 of 2010 is filed by the wife seeking to transfer O.P.No.1337 of 2010, pending before the Family Court, Ernakulam to the Family Court, Kottarakkara. 2. The marriage between the parties took place in 1992. It is stated that the native place of both the parties is at Kottarakkara. At the time of marriage, the husband was working in Navy. After his retirement from Navy, it is stated that the couple resided at various places including Mumbai and Madras. Thereafter, they returned to Kerala. It is stated that the husband is engaged in business. 3. In December 2008, it is stated that the wife left the matrimonial home at Ernakulam (a rented house at Thevara) and Tr.P.(C) NOS.391 AND 392 OF 2010 :: 2 :: went to Kottarakkara. According to her, she left the matrimonial home due to the harassment and matrimonial cruelty meted out by the husband. According to the husband, the wife left the matrimonial home on her own accord and without any justification. In February 2010, the husband filed O.P.No.147 of 2010 before the Family Court, Ernakulam for restitution of conjugal rights. After counselling, it is stated, the parties agreed to reside together. However, it is stated that O.P.No.147 of 2010 was not closed and the same is pending even now. According to the wife, from 18.4.2010 to 23.7.2010, she resided with her husband in the rented house at Thevara at Ernakulam. But, due to harassment, she had to leave the husband with the child on 23.7.2010. 4. On 27.7.2010, the wife filed M.C.No.15 of 2010 before the Court of the Additional Chief Judicial Magistrate, Ernakulam, under the provisions of the Protection of Women from Domestic Violence Act, 2005. M.C.No.15 of 2010 is pending. 5. The husband filed O.P.No.1337 of 2010 before the Family Court, Ernakulam for the custody of the child. It is stated that as per an interim order, the Family Court granted custody of the child to the Tr.P.(C) NOS.391 AND 392 OF 2010 :: 3 :: husband for the current academic year to enable the child to study in the Navy School. O.P.No.1337 of 2010 is pending. 6. It is not in dispute that the child is an adopted child. 7. It is stated that in October 2010, the wife filed O.P.No.941 of 2010 before the Family Court, Kottarakkara for declaration of title and possession in respect of the immovable properties mentioned in the petition. It is alleged by the wife that though certain items of properties were purchased in the joint names of the husband and wife, the funds for the same were contributed by her father. According to the wife, she has title and possession to the property. O.P.No.941 of 2010 is pending before the Family Court, Kottarakkara. Learned counsel for the respondent submitted that the respondent has not received notice in O.P.No.941 of 2010. 8. As stated earlier, the wife wants the two cases pending before the Family Court, Ernakulam to be transferred to the Family Court, Kottarakkara. The husband resists the same. According to him, he is a cardiac patient. He was suffering from renal problems as well. Certain prescriptions are produced by the respondent to Tr.P.(C) NOS.391 AND 392 OF 2010 :: 4 :: show that he is suffering from the diseases mentioned above. The prescriptions would show that in 2006 he had undergone treatment for gall bladder stone and for cardiac problems. Another prescription shows that even in July 2010, he had medical consultation for cardiac problems. 9. It is not in dispute that the wife belongs to Kottarakkara. She is a house wife. The respondent is engaged in business. He resides in a rented house at Ernakulam. There are four cases pending between the parties. It is stated by the wife that M.C.No.15 of 2010 filed by her under the Protection of Women from Domestic Violence Act, 2005 has reached the final stage of trial. The rest of the cases have not reached the stage of trial. 10. Taking into account the facts and circumstances of the case, the comparative hardship, the fact that the wife is unemployed, the fact that the wife is residing far away and that there is not much difficulty for the husband to travel from Ernakulam to Kottarakkara, I am of the view that the cases pending before the Family Court, Ernakulam should be transferred to the Family Court, Kottarakkara. By such transfer, no great prejudice would be caused to the Tr.P.(C) NOS.391 AND 392 OF 2010 :: 5 :: husband. On the other hand, if the cases are to be tried at the Family Court, Ernakulam, the wife would be put to great prejudice and hardship. The Supreme Court has taken the view in several cases that the hardship of the wife should be taken note of while considering the question of transfer. For the aforesaid reasons, I allow Tr.P.(C) Nos.391 and 392 of 2010. O.P.No.147 of 2010 pending before the Family Court, Ernakulam shall stand transferred to the Family Court, Kottarakkara. O.P.No.1337 of 2010, pending before the Family Court, Ernakulam shall also stand transferred to the Family Court, Kottarakkara. The Family Court, Kottarakkara shall consider whether the aforesaid two cases and also O.P.No.941 of 2010 should be heard and disposed of together, taking into account the convenience of both the parties. The Family Court, Ernakulam shall transmit the records of the aforesaid two cases to the Family Court, Kottarakkara. (K.T.SANKARAN) Judge ahz/