IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 Tr.P(C).No. 14 of 2011() ------------------------ OP NO.948/2010 AND MC.934/2010 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): ------------------------------ ABOOBACKER SIDDIQUE, ADVOCATE, S/O. LATE ABDULLA, MULLAMADAKKAL POOVATTIL HOUSE, PADIKKAL, VELIMUKKU P.O., THIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAMADAS RESPONDENT(S): --------------- NAJMATH, D/O. KUNHIMOHAMMED, PULIKKALAKATH HOUSE, ZAHIRA MANZIL, PARAPPANANGADI, CHETTIPPADI P.O., TIRURANGADI TALUK, MALAPPURAM-676 319. BY ADV. SRI.DEVAPRASANTH.P.J. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Tr.P(C)NO.14/2011 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-I TRUE COPY OF THE JUDGMENT DATED 25.2.2009 IN TR.P(C)NO.15/2009 ANNEXURE-II TRUE COPY OF MC 934/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, MALAPPURAM ANNEXURE-III-TRUE COPY OF OP NO.948/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, MALAPPURAM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) No.14 of 2011 -------------------------------------- Dated this the 22nd day of September, 2011. ORDER Petitioner – husband seeks transfer of O.P.No.948 of 2010 and M.C.No.934 of 2010 from Family Court, Malappuram to Family Court, Kozhikode. It is stated that O.P.No.948 of 2010 is filed by the respondent – wife for a declaration that she is the guardian of the child while M.C.No.934 of 2010 is filed claiming maintenance from petitioner. Petitioner states that he is residing at Velimukku in Thirurangadi Taluk, Malappuram District, is a lawyer practicing at Parappanangadi and Family Court, Malappuram and hence has embarrassment to contest the case at Family Court, Malappuram. It is also stated that respondent - wife is residing at Chettippadi and that the distance from that place to Kozhikode is only 30 kms. while the distance to Malappuram is 40 ks. Hence the request for transfer. 2. Petition is opposed by the respondent. It is contended that respondent had filed M.C.No.219 of 2010 under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act in the court of learned Judicial First Class Magistrate, Parappanangadi. Petitioner filed C.M.P.No.4881 of 2010 in the court of learned Chief Judicial Magistrate, Manjeri to transfer M.C.No.219 of 2010 from the court of learned Judicial First Class Magistrate, Parappanangadi to any other Magistrate's Court in Malappuram District. There was no request to Tr.P.(C)No.14/2011 2 transfer the said case beyond Malappuram District, that case was transferred to the court of learned Judicial First Class Magistrate, Malappuram as per order dated 10.12.2010 and there, petitioner is appearing and contesting the case. It is argued that if petitioner has no difficulty to appear in the court of learned Judicial First Class Magistrate, Malappuram he could have no difficulty in appearing in the Family Court, Malappuram as well. 3. There were earlier proceedings between the parties – O.P.No.848 of 2010 and M.C.No.730 of 2008 pending in the Family Court, Malappuram, the former one for return of gold ornaments and other reliefs and the latter, for maintenance. On the request of petitioner, this Court as per Ext.P1, order dated 25.02.2009 in Tr.P.(C) No.15 of 2009 transferred those cases to Family Court, Kozhikode. Those cases were renumbered and later dismissed for default. It is submitted that after about 11 months applications for restoration were filed but, the same also were dismissed. That, according to the learned counsel for respondent happened due to inability of respondent to attend Family Court, Kozhikode and contest the cases. It is also submitted that respondent is a poor lady and that she has relatives at Malappuram while she has to go alone to Family Court, Kozhikode. Learned counsel for respondent submits that in case the request for transfer is allowed, petitioner may be directed to pay a certain amount towards travelling expenses of the respondent. Tr.P.(C)No.14/2011 3 4. According to the respondent, petitioner is not practicing as a lawyer. But, it is not disputed that he is a lawyer whether presently he is practicing as a lawyer in the Family Court, Malappuram or not. It is seen from Ext.P1, order that for the same reason request for transfer made by petitioner was allowed. There is no reason why I should take a different decision in this matter. Transfer of M.C.No.219 of 2010 from the court of learned Judicial First Class Magistrate, Parappanangadi to the court of learned Judicial First Class Magistrate, Malappuram need not mean that the cases pending in Family Court, Malappuram have to continue there. For, petitioner may not be practicing in the court of learned Judicial First Class Magistrate, Malappuram but since Family Court, Malappuram has jurisdiction over the entire Malappuram District, he has cases in that court and has to appear in that court. I must also bear in mind the contention of petitioner that the distance from the place of residence of respondent to Family Court, Kozhikode is shorter than to Family Court, Malappuram. 5. So far as grievance of respondent that on account of financial difficulties she is unable to attend the court is concerned, the law enables her to move application for interim maintenance in M.C.No.730 of 2008 which is being transferred to Family Court, Kozhikode and if any such application is moved, the Family Court, Kozhikode has to consider the said application and pass appropriate orders as provided under law. Tr.P.(C)No.14/2011 4 6. In the circumstances stated above I am inclined to allow the request in this petition. Resultantly this petition is allowed as follows: (i) O.P.No.948 of 2010 and M.C.No.934 of 2010 pending in Family Court, Malappuram are withdrawn from that court and made over to Family Court, Kozhikode for trial and disposal. The transferee court shall post the cases as far as possible on the same dates. (ii) The transferor court while transmitting records of the cases to the transferee court shall fix date for appearance of parties in the transferee court with due intimation to the counsel for both parties. (iii) It is made clear that except when the physical presence of respondent is required, she can appear in the transferee court through counsel. I.A.Nos.91 and 1600 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks