IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD OCTOBER 2011 / 12TH ASWINA 1933 Tr.P(C).No. 295 of 2011() ------------------------- (OP.779/2011 of FAMILY COURT, MALAPPURAM TO THE FAMILY COURT, ERNAKULAM) .................... PETITIONER: ----------- SHEEBA BEGUM, AGED 40 YEARS, D/O UMMER KANNU, THEKKETHIL VEEDU, P.O.PALLICKAL, THIRUVANANTHAPURAM DISTRICT, PRESENTLY RESIDING AT "STAR HOMES", TRIPUNITHURA, ERNAKULAM AND WORKING AS INSURANCE CONSULTANT, HDFC BANK, TRIPUNITHURA, ERNAKULAM. BY ADV. SRI.R.MANOJ SMT.SINDHU MANOJ RESPONDENT(S): -------------- RAJESH PATTAYIL,AGED 37 YEARS, S/O VELAYUDHAN, PATTAYIL HOUSE, P.O.VALLIKUNNU,VIA K0ADALUNDI NAGARAM, THIRURANGADI TALUK, MALAPPURAM - 673 001 BY ADV. SRI.DINESH MATHEW J.MURICKAN SRI.P.V.BALAKRISHNAN THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: BKA Tr.P(C).No. 295 of 2011() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1: COPY OF THE MEMORANDUM OF PETITION IN OP NO. 779/2011 ON THE FILES OF THE FAMILY COURT, MALAPPURAM DATED 29.07.2011. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// PA TO JUDGE BKA THOMAS P. JOSEPH, J. ---------------------------------------------- Tr.P (C) No.295 OF 2011 ----------------------------------------------- DATED THIS THE 3rd DAY OF OCTOBER 2011 ORDER This petition is filed by the wife seeking transfer of OP No.779 of 2011 from the Family Court, Malappuram to the Family Court, Ernakulam. That OP filed by the respondent husband for divorce. Petitioner/wife aged about 40 years states that she is working in H.D.F.C Bank, Tripunithura in Ernakulam District. In connection with her employment she is staying at Tripunithura. She states that she is unable to travel the long distance from Tripunithura to Malappuram. Hence her request for transfer of the case. 2. Learned counsel for respondent while opposing the request of petitioner states that petitioner is staying at Tripunithura only in connection with her employment. If she is transferred to some other branch of the Bank, there is the possibility of her requesting for a transfer to such places. It is also pointed out by learned counsel for the respondent that an order of transfer of a case can be passed where both courts, namely, the transferor court and the transferee court have jurisdiction to hear the case. The Family Court Ernakulam has no Tr.P (C) No.295 of 2011 -2- jurisdiction to hear the matter. Learned counsel for the respondent relied on a decision in Neha Arun Jugadar V. Palak Diwan Ji reported in 2011 (1) KLT 770 in support of his contention. 3. So far as the second limb of the objection is considered, my attention is drawn to the decision cited supra. That decision must be understood in the back drop of the facts of the case. The Supreme Court was considering the request for transfer of a petition under Section 166 of the Motor Vehicles Act, 1988. Section 24 of the Code of Civil Procedure (for short 'the Code') deals with the general power of the High Court/District court for transfer and withdrawal of cases. The said provision enables the High Court/District Court to transfer cases from one court subordinate to it to another court subordinate to it and competent to try and dispose of the case. The observation made in the decision cited as to jurisdiction of the transferee court need only be understood as competence of the transferee court as stated in Sec.24 of the Code. 4. So far as the first limb of the objection is concerned, that is not a matter required to be considered at this stage. Petitioner is presently staying at Tripunithura in connection with Tr.P (C) No.295 of 2011 -3- her employment she has to travel the long distance from Tripunithura to Malappuram. She may have to be accompanied somebody which involves expenses also. 5. 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) has stated that while considering request for transfer in matrimonial proceedings convenience of the wife has to be looked into. True, that does not mean that inconvenience of the husband has to be ignored. 6. Having regard to the various circumstances stated, I am inclined to think that comparative hardship of the wife is more than that of the husband. The inconvenience that may be caused to the husband can be reduced by directing that he could appear through counsel in the transferee court except when his physical presence is necessary. Resultantly this petition is allowed as follows: (i) OP No.779 of 2011 pending in the Family Court, Malappuram is withdrawn from that Court and transferred to the Family Court, Ernakulam. (ii) The transferor Court shall transmit records of the Tr.P (C) No.295 of 2011 -4- 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 the physical presence of respondent is required, he can appear in the transferee Court through counsel. Sd/- THOMAS P. JOSEPH JUDGE AMG Case number “O.P. No.779 of 2011” occurring in the 2nd line of paragraph 1 and in clause (i) of the operative portion in page 3 of the order dated 03-10-2011 in Tr.P (c) No.295/2011 is corrected and substituted as “O.P No.799/2011” vide order dated 15-11-2011 in I.A No.2522/2011 in Tr.P (c) 295/2011. Sd/- Registrar (Judicial) True copy P.A to Judge