IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 Tr.P(C).No. 233 of 2011 -------------------------------- [TO TRANSFER O.P.NO.428/2011 ON THE FILES OF OF FAMILY COURT, BADAGARA TO THE FAMILY COURT, MALAPPURAM] .................... PETITIONER: ------------------- SWAFOORA, AGED 28, D/O. MOHAMMED, AMBALATH VEETTIL, KOKKUR.P.O., CHANGARANKULAM, PONNANI TALUK, MALAPPURAM DISTRICT-679 591. BY ADVS. SRI.K.SHIBILI NAHA, SMT.A.LOWSY. RESPONDENT: ---------------------- JAHANLAL, S/O. HAMSA, KANIYANKANDICHALIL HOUSE, PERAMBRA- MENHANIUM.P.O., CALICUT DISTRICT-673 525. BY ADV. SRI.MOHANAN V.T.K. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, ALONG WITH TR.P.(C). NO. 268 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: TR.P.(C).NO.233/2011: APPENDIX PETITIONERS' ANNEXURES: ANNEXURE.A: COPY OF THE O.P.NO.639/2011 PREFERRED BY THE PETITIONER BEFORE THE FAMILY COURT, MALAPPURAM. ANNEXURE.B: COPY OF THE NOTICE IN O.P.2428/2011 PENDING BEFORE THE FAMILY COURT, BADAGARA. RESPONDENTS' ANNEXURE: ANNEXURE-R1: COPY OF THE JOINT PETITION PREPARED AND SENT BY ONE ALI AND THE PETITIONER'S FATHER UNDER THREAT. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P JOSEPH, J. ---------------------------------------- Tr.P(C).Nos.233 and 268 of 2011 --------------------------------------- Dated this 22nd day of August, 2011 ORDER These petitions are for transfer of cases pending in Family Court, Vatakara and Family Court, Malappuram to the Court of convenience of the parties hereto. The wife has filed O.P.No.639 of 2011 in Family Court, Malappuram for dissolution of marriage while the husband has filed O.P.No.428 of 2011 in Family Court, Vatakara for restitution of conjugal rights. It would appear from the proceedings that the wife belongs to the Muslim community while the husband is born in an intercaste marriage between a Muslim and Hindu. The husband's father is Muslim while his mother is a Hindu. It is stated that the husband follows Hindu religion. It is while so, that difference of opinion arose between the husband and wife and they filed petitions as above stated. Wife who is residing at Changarankulam, in Ponnani Taluk seeks transfer of the case pending in Family Court, Vatakara to Family Court, Malappuram while the husband residing at Perambra seeks transfer of the case from Family Court, Malappuram to Family Court, Vatakara. According to the wife, it is quite inconvenient for her to travel all the distance from Tr.P(C).Nos.233 and 268 of 2011 -: 2 :- Changarankulam to Vatakara and that it is convenient for her to have the cases tried at Family Court, Malappuram. Learned counsel for the husband submitted that the husband has undergone a surgery for his ear and apart from that, he is facing threat from the relatives of the wife. It is stated that the father of the wife along with others has threatened the husband asking him to sign a joint petition for divorce. A copy of that petition is also produced along with Tr.P(C).No.268 of 2011. Husband is apprehensive of going to Malappuram as it may even endanger his life. These allegations are denied by the wife. Learned counsel points out that what is produced along with Tr.P(C). No.268 of 2011 is only a typewritten copy of a joint petition which could be made by anybody, anywhere, any time. There is no sufficient material on record to show that it is signed by the father of the wife or anybody else related to her. It is argued that apprehension of the husband is imaginary. 2. 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 the request for transfer in matrimonial proceedings convenience of the wife has Tr.P(C).Nos.233 and 268 of 2011 -: 3 :- to be looked into. But I must also bear in mind that facts and circumstances of each case has to be looked into. Here, the parties belong to different religion and difference of opinion arose on account of that also. That is a matter which causes concern. In such a situation, the appropriate course is to find a suitable Court which will not be that much inconvenience to both sides to conduct their cases. As I stated, the wife belongs to Changarankulam, in Ponnani Taluk. She can go to Family Court, Kozhikode by train if she goes to Kuttipuram railway station. I am told that the distance from Changarankulam to Malappuram is around 55-60km. If she is to travel by bus from Changarankulam to Malappuram, she has to go via Kottackal, the distance from Kottackal to Malappuram being around 12km and while from Kottackal to Kozhikode the distance is 35km. Difference is of 23 kms. As I stated, inconvenience caused to the wife if the cases transferred to Family Court, Kozhikode can be reduced if she goes by train from Kuttipuram. Having regard to the apprehension raised by husband and having regard to the inconvenience caused to both sides, proceedings could be transferred to Family Court, Kozhikode. Any inconvenience that the parties may suffer on account of that could be reduced by Tr.P(C).Nos.233 and 268 of 2011 -: 4 :- directing that they can appear through counsel. These transfer petitions are disposed of in the following lines: (i) Tr.P(C).No.233 of 2011 is allowed. O.P.No.428 of 2011 is withdrawn from Family Court, Vatakara and made over to Family Court, Kozhikode . (ii) Tr.P(C).No.268 of 2011 is allowed and O.P.No.639 of 2011 is withdrawn from Family Court, Malappuram and made over to Family Court, Kozhikode. (iii) The transferor courts shall transmit records of the case to the transferee court with due intimation to the counsel on both sides as to the date of appearance in the transferee court. (iv) Family Court, Kozhikode is directed to post both cases on the same day as far as possible. (v) It is made clear that the parties can appear through their counsel in the transferee Court except when their physical presence is required. (THOMAS P JOSEPH, JUDGE) Sbna/-