IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 Tr.P(C).No. 163 of 2008() ------------------------- OP.407/2008 of FAMILY COURT, KOTTAYAM .................... PETITIONER:- --------------- MS. SONY ABRAHAM, AGED 26 YEARS, DAUGHTER OF SRI.T.C. ABRAHAM, RESIDING AT FLAT NO.8,AMRAPALI BUILDING, BAHU PATIL ROAD, RANGE HILLS P.O., AUNDH, PUNE 411 020, MAHARASHTRA, BY ADV. SRI.ANIL S.RAJ SRI.MOHAMMED SIYAD SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS SMT.ANILA PETER RESPONDENTS: ------------- MR.BOBBY BOSCO, AGED 28 YEARS, SON OF SRI.JOY SEBASTIN ORIGINAL RESIDENT OF KAROTTUVEMPENICKAL HOUSE, SREEKANDAMANGALAM P.O.,' ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT,AND NOW AT HONEYWELL AUTOMATION INDIA LTD., 56 & 57, HADAPSAR INDUSTRIAL ESTATE, HADAPSA BY ADV. SMT.TISSY ROSE K CHERIYAN FOR R1 SRI.K.M.FIROZ FOR R1 SRI.JACOB E SIMON FOR R1 THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- Tr.P.(C) No.163 of 2008 ------------------------------- Dated this the 13th August, 2008. O R D E R This petition is filed under Section 23 of Code of Civil Procedure to transfer O.P.No.407 of 2008, on the file of Family Court, Kottayam, to Family Court, Pune. O.P.No.407 of 2008 is filed by the respondent for divorce. Petitioner is the wife. The case of the petitioner is that she is residing and working at Pune and it is not possible for her to come to Kottayam and contest the case, and, therefore, Original Petition pending before Family Court, Kottayam, is to be transferred to Family court, Pune. It is also contended that respondent is also working at Pune. 2. The learned counsel appearing for the respondent opposed the prayer for transfer. It was submitted that respondent is now not working at Pune and though head office of the company in which respondent is employed is at Pune, he is not working at Pune, and, therefore, it is not at all Tr.P.(C) No.163 of 2008 2 convenient for the respondent to get the Original petition transferred to Pune. The learned counsel also submitted that notices are being received by the respondent at his address at Kottayam and not at Pune. 3. Section 23 of Code of Civil Procedure provides for the Court which an application for transfer, as provided under Section 22, is to be filed. Section 22 provides that where, a suit may be instituted in any one or two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another court, and the Court to which such application is made, after considering the objections of the other parties, shall determine in which of the several Courts having jurisdiction the suit shall proceed. 4. Sub-section (1) of Section 23 of Code of Civil Procedure provides that where the several Courts having jurisdiction are subordinate to the same Appellate Court, an Tr.P.(C) No.163 of 2008 3 application under Section 22 shall be made to the Appellate Court. Sub-section (3) of Section 23 provides that where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought . 5. O.P.No. 407 of 2008 is filed by the respondent before Family Court, Kottayam, a Court subordinate to this Court. Petitioner and the respondent were admittedly residing at Pune, as husband and wife, within the jurisdiction of Family Court, Pune. In such circumstances, Family Court, Pune, had definitely jurisdiction to try the Original Petition filed by the respondent for dissolution of marriage. When petitioner-wife is employed and is residing at Pune, she is definitely entitled to apply for transfer as provided under Section 22 of Code of Civil Procedure, and that application is to be filed before this Court, as provided under sub- section 3 of Section 23, as Family court in which Original Petition is filed by respondent is subordinate to this Court. Though learned counsel appearing for the respondent argued that the Tr.P.(C) No.163 of 2008 4 respondent is now working at Pune, and it is not convenient for him to get the case transferred to Pune, when the convenience of both the parties is to be balanced, preference necessarily is to be given to the inconvenience and difficulties of the wife. If that be so, petitioner is entitled to get the Original Petition filed by the respondent for divorce transferred to Family Court, Pune. Transfer petition is allowed. O.P.No.407 of 2008 on the file of Family Court, Kottayam, is withdrawn and transferred to Family Court, Pune. M.SASIDHARAN NAMBIAR, JUDGE nj.