IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 Tr.P(C).No. 151 of 2010() ------------------------- OP(HMA).80/2010 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER/RESPONDENT ----------------------------------------- SHEEJAMOL, D/O.THANKAM, AGED 24 YEARS, RESIDING AT LAKSHMI NIVAS, AMBALAPPARA, OTTAPALAM, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH SMT.N.N.PRASEEDA RESPONDENT: PETITIONER ------------------------- SANTHOSHKUMAR, S/O.GANGADHARANUNNITHAN, AGED 32 YEARS, RESIDING AT MULLASSERIL HOUSE, ERATHUKULA KADA MURIYIL, KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK. ADV. SRI.V.PREMCHAND FOR R1 THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Tr.P(C).No.151 of 2010 --------------------------------------- Dated this 15th day of November, 2010 ORDER This petition is filed by the wife seeking transfer of O.P (H.M.A).No.80 of 2010 from Family Court, Kottarakkara to Family Court, Palakkad. That is a petition filed by respondent/husband for restitution of conjugal rights. Petitioner states that she is a permanent resident of Ambalappara, in Palakkad District and that she has got a five year old child. Her parents are aged and hence there is nobody to accompany her to Family Court, Kottarakkara which is situated far away from her place of residence. She has filed M.C.No.149 of 2010 in Family Court, Palakkad claiming maintenance from respondent and that case is pending. In the circumstances, the request for transfer. 2. Petition is opposed by the respondent. Respondent states that he is working abroad, has engaged his mother as power of attorney to conduct the case on his behalf and that the mother is aged and un able to travel all the distance from Kottarakkara to Palakkad. Learned counsel also states that petitioner filed M.C.No.149 of 2010 in Family Court, Palakkad after respondent filed O.P(H.M.A).No.80 of 2010 in Family Court, Tr.P(C).No.151 of 2010 : 2 : Kottarakara. 3. 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) stated that while considering request for transfer in matrimonial proceeding convenience of the wife has to be looked into. It is not disputed that petitioner/wife, aged about 23 years is residing in Palakkad district. It is also not disputed that M.C.No.149 of 2010 is pending in Family Court, Palakkad and until now no application has been filed by the respondent for transfer of the case to Family Court, Kottarakkara on whatever ground, it be. Respondent is working abroad and the only inconvenience stated is that his power of attorney is his aged mother. 4. Assuming that the mother is aged and sick, it is open to the respondent to engage a healthier person as his power of attorney to conduct the case. Anyway, the mother as power of attorney of respondent has to travel all the distance from Kottarakkara to Palakkad to contest M.C.No.149 of 2010 if the present situation continues. If O.P(H.M.A).No.80 of 2010 continues at Family Court, Kottarakkara petitioner, a young lady Tr.P(C).No.151 of 2010 : 3 : has to travel a long distance. Having regard to the facts and circumstances of the case I am persuaded to think that comparative hardship is more on petitioner if request for transfer is not allowed than the inconvenience that may be caused to the husband or his power of attorney if transfer requested for is allowed. The hardship of respondent or his power of attorney can be reduced by directing that power of attorney of respondent need appear in the transferee court only when her physical presence is essential. Hence I am inclined to allow this petition. Resultantly this petition is allowed in the following lines: (i) O.P(H.M.A).No.80 of 2010 pending in Family Court, Kottarakara is withdrawn from that court and made over to Family Court, Palakkad. (ii) The transferor court shall transmit records of the case to the transferee court with due intimation to counsel on both sides as to the date of appearance in transferee court. (iii) It is made clear that except when physical presence of respondent or power of attorney is required, they can appear in the transferee court through counsel. (THOMAS P JOSEPH, JUDGE) Sbna/-