IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 Tr.P(C).No. 133 of 2009 -------------------------------- OP.(HMA).NO.130/2009 OF FAMILY COURT, KOTTARAKKARA. .................... PETITIONER: ------------------- RANJINI, AGED 28 YEARS, DAUGHTER OF DEVAMMA, RESIDING AT RENJITH BHAVAN, CHEMMAKKAD CHERRY, PERINAD VILLAGE, KOLLAM DISTRICT. BY ADVS. MR.JOHNSON GOMEZ. RESPONDENT: ---------------------- REJESH, AGED 31 YEARS, RESIDING AT RAJESH BHAVAN,AGASTHYAGOD P.O. AGASHTYAGODE VILLAGE, ANCHAL, KOLLAM. BY ADVS. MR.K.S.SAJEEV KUMAR, MR.LAJI ZAM ZACHARIA. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- Tr.P.(C).No. 133 OF 2009 -------------------------- Dated this the 19th day of August 2009 ------------------------------------- O R D E R Petition is for transfer filed under Section 24 of the Code of Civil Procedure. Petitioner is the wife, and respondent, the husband. Wife seeks transfer of O.P 130/09 on the file of the Family Court, Kottarakara which has been filed by the husband seeking restitution of conjugal rights, to the Family Court, Kollam. She has filed a petition as M.C 243/08 under Section 125 of the Code of Criminal Procedure for claiming maintenance for herself and also for the child from the husband and it is pending before the Family Court, Kollam. After receiving notice and entering appearance in the above case, husband has filed the other O.P before a different court, Family Court, Kottarakara is the case of the wife. She seeks transfer of Tr.P.(C).No. 133 OF 2009 Page numbers that O.P to the Family Court, Kollam where a proceeding for the maintenance is pending for enquiry and consideration. 2. Notice being given, the husband has entered appearance. He has filed a detailed counter opposing the application. The main grounds of opposition raised are that to attend the Family Court, Kottarakara, the spouses need to cover only a distance of 25 Km. from their residence, and that he has to look after his aged parents, who, according to him, suffer from serious ailments requiring continuous medical treatment. He has also raised an apprehension that, he apprehends of manhandling and assault from the powerful relatives of the wife if his case is transferred from the Family Court, Kottarakara to Family Court, Kollam. Tr.P.(C).No. 133 OF 2009 Page numbers 3. I heard the counsel on both sides. In considering the question of transfer of the cases, comparative hardship of the parties has to be weighed and normally the court will be inclined to give more weightage and consideration to the hardships of the wife. But all the same, if circumstances are shown that hardship or injury likely to be suffered by the husband will be much more than that of the wife that also deserve to be taken note of in examining the question of transfer. From the submissions made and taking note of the facts and circumstances presented, I find that the wife has to look after an infant aged 2 ½ years old, the only child born out of the wedlock of the spouses. Though the husband highlights the ailments of his parents and the attendance required for them from him, to oppose the application for transfer, it appears he does not evince the same concern for his child aged 2 ½ Tr.P.(C).No. 133 OF 2009 Page numbers years old which depends for care and protection on the mother. Naturally the interest of the minor child aged 2 ½ years must also to be taken note of and appreciated in deciding the question of transfer in a matrimonial proceeding. If the wife is compelled to go over to Family Court, Kottarakara to defend the case launched against her by the husband, she has to take the infant also with her. Where it is shown that the child is only 2 ½ years old if he is left behind its growth and well being will be affected. The husband has no case that there is someone else other than the mother to take care of the child. When that be so, in the facts of the case where the wife has already filed a claim for maintenance against the husband for herself and also the child presumably advancing a case that there was neglect by the husband to provide them and also lack of her means for sustenance in life I find she cannot compelled to Tr.P.(C).No. 133 OF 2009 Page numbers go over to Family Court, Kottarakara meeting the conveyance expenses and other expenses to defend the prosecution launched against her by the husband. In the given facts of the case, I find , the interest of the wife has to get precedence. To meet the ends of justice transfer of the case O.P No.130/2009 from Family Court, Kottarakara to the Family Court, Kollam is essentail. The apprehension raised by the husband that the relatives of the wife are highly influential and powerful and there is threat of assault on his person to oppose the application cannot be accepted on its face value. If at all there is a threat from any person causing obstruction to him to appear before the Family Court, Kottarakara, then naturally he will have to approach the law enforcing agencies for redressal of his grievance. I order for transfer of O.P No.130/2009 from the Family Court, Kottarakara to the Family Court, Tr.P.(C).No. 133 OF 2009 Page numbers Kollam. Judge, Family Court, Kottarakara is directed to transfer the records of the above case to the Family Court, Kollam without delay. The transferee court, Family Court, Kollam on receipt of the records shall give notice to the parties for appearance. Petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv