IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 TR.P(C).NO. 82 OF 2011() ------------------------------------- OP.1123/2010 OF FAMILY COURT,KOZHIKODE .................... PETITIONER-RESPONDENT: ----------------------------------------- VINCY K., D/O.GOVINDAN K., KANJIRATHINGAL HOUSE, KALATHIL PADI, PULPATTA P.O., MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): PETITIONER ---------------------------------------------- SUDHEESH M.P., S/O.SOMAN, VALAPPIL HOUSE, NELLIKODE P.O., PIN-673016, KOZHIKODE DISTRICT. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: TR.P(C) NO.82 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- ANNEUXRE-A1 TRUE COPY OF THE PETITION IN O.P. NO.1123 OF 2010 ON THE FILE OF THE FAMILY COURT, KOZHIKODE. ANNEXURE-A2 TRUE COPY OF THE PETITION IN O.P. NO.984 OF 2010 ON THE FILE OF THE FAMILY COURT, MALAPPURAM. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== Tr.P(C) No.82 of 2011 ==================================== Dated this the 24th day of August, 2011 O R D E R Since notice to the respondent was returned with endorsement “not known”, notice was ordered to be served on the counsel appearing for respondent in the court below and accordingly notice was served. Learned counsel has filed a memo to that effect. There is sufficient service of notice in view of Rule 59 of the Kerala High Court Rules. 2. This petition is filed by the wife seeking transfer of O.P. No.1123 of 2010 from Family Court, Kozhikode to Family Court, Malappuram. That is a petition filed by the respondent- husband for restitution of conjugal rights. Petitioner has filed O.P. No.984 of 2010 in Family Court, Malappuram for dissolution of marriage and that proceeding is pending in that Court. Petitioner who is a resident of Manjeri, in Malappuram District seeks transfer of O.P. No.1123 of 2010 to Family Court, Malappuram due to difficulty in travelling the long distance from her place of residence to Kozhikode. 3. The Supreme Court in Sumitha Singh v. Kumar Tr.P(C) No.82 of 2011 -: 2 :- Sanjay and another (AIR 2002 SC 396) and Arti Rani v. Dharmendra Kumar Gupta ([2008] 9 SCC 353) has stated that while considering request for transfer of matrimonial proceedings convenience of the wife has to be looked into. 4. Petitioner has filed O.P. No.984 of 2010 which is pending in Family Court, Malapuram. Since that petition is for dissolution of marriage and O.P. No.1123 of 2010 filed by the respondent is for restitution of conjugal rights it is only appropriate that both the cases are disposed of by the same court. Since petitioner is residing in Manjeri, in Malappuram District she has to travel all the distance from her place of residence to Kozhikode to contest the case. Having regard to the circumstances stated I am inclined to think that the comparative hardship is more on petitioner if the request for transfer is not allowed. The inconvenience that may be caused to respondent can be reduced by permitting him to appear in the transferee court through counsel except when his physical presence is required. Hence I am inclined to allow the petition. Resultantly, the Petition is allowed in the following lines: (a) O.P. No.1123 of 2010 pending in Family Court, Kozhikode is withdrawn from Tr.P(C) No.82 of 2011 -: 3 :- that court and made over to Family Court, Malappuram for trial and disposal. (b) The transferor court while transmitting records of the case to the transferee court shall fix the date for appearance of parties in the transferee court with due intimation to the counsel on both sides. (c) Family Court, Malappuram shall ensure that O.P. No.1123 of 2010 (transferred to it) and O.P. No.984 of 2010 (pending in that court) are posted as far as possible on the same dates. (d) It is made clear that except when physical presence of respondent in the transferee court is necessary, he can appear through counsel. All pending interlocutory applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv