IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 Tr.P(C).No. 197 of 2009 --------------------------------- [OP.NO.65/2008 OF FAMILY COURT, KALPETTA] .................... PETITIONER: ------------------- T.SHIBU, AGED 33 YEARS, S/O. T.K. NARAYANAN, KANIYATHATHAZHAM HOUSE, AMBALAKOTH, P.O. MEDICAL COLLEGE, KOZHIKODE -08. BY ADV. MR.MANJERI SUNDER RAJ. RESPONDENT: ---------------------- K.S. SOPHIA @ K.S. SHIBA, AGED 27 YEARS, D/O. SHASHIDARAN PILLAI, PARISON TEA ESTATE- QUARTERS, CHIRAKARA, P.O. MANANTODDY, WAYANAD -670 644. BY ADV. MR.M.GOPIKRISHNAN NAMBIAR. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ------------------------------- Tr.P.(C).NO.197 OF 2009 () ----------------------------------- Dated this the 16th day of September, 2009 O R D E R Petition for transfer is filed under Section 24 of the Code of Civil Procedure. Petitioner is the husband, and the respondent, the wife. Petitioner/husband had moved O.P.No.295 of 2008 before the Family Court, Kozhikode for restitution of conjugal rights. Wife has filed O.P.No.65 of 2008 before the Family Court, Kalpetta for dissolution of the marriage. Previously, transfer petition Tr.P.(C).No.145 of 2008 was filed by the husband at a time when both petitions were pending seeking joint trial of the case, by transfer of the petition O.P.No.65 of 2008 to the Family Court, Kozhikode. As already stated that when the petition came up for consideration, the petition filed by the husband for restitution of conjugal rights had been disposed of by passing a decree in his favour. So much so, the transfer petition was withdrawn. The present transfer petition is filed by the husband seeking TPC.197/09 2 transfer of the petition filed by the wife O.P.No.65 of 2008 pending before the Family Court, Kalpetta to the Family court, Kozhikode. 3. Notice given, the respondent has entered appearance. I heard the counsel on both sides. The learned counsel for the petitioner submitted that since one proceeding has already been disposed of by the learned Judge, Family Court, Kozhikode taking note of the spirit of Section 21 of the Hindu Marriage Act, the petition filed by the wife as O.P.No.65 of 2008, now pending before the Family court, Kalpetta be transferred to Family Court, Kozhikode. Opposing the application, the learned counsel for the wife submitted that in the given facts of the case, Section 21 of the Hindu Marriage Act has no application as only one proceeding is now pending. In considering the question of transfer, the convenience of the parties has to be looked into apart from other questions which may be germane for consideration. It is submitted that the jurisdiction of the Family Court, Kalpetta to entertain the petition has been challenged by the husband and it awaits the decision of the Family Court, Kalpetta. Whatever that be, in a matrimonial dispute as between the spouses, normally, in the TPC.197/09 3 absence of special circumstances, the court will be inclined to give more consideration to the convenience of the wife in judging in which court the case is to be tried. It is submitted, the wife is permanently settled at Wayanad, and according to the learned counsel, the Family Court, Kalpetta has jurisdiction to entertain the petition filed by her for dissolution of marriage. Previously, in a petition filed by the husband, a decree had been passed by the Family Court, Kozhikode cannot be given unmerited consideration to hold that the petition filed by the wife require to be transferred before that court for adjudication. Subject to the question of jurisdiction, canvassed by the husband, which is yet to be decided by the Family Court, Kalpetta, I find, at present, the request for transfer cannot be allowed, and the transfer petition is closed. S.S.SATHEESACHANDRAN JUDGE prp