IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Tr.P(C).No. 285 of 2010() ------------------------- OP.643/2010 of FAMILY COURT, MALAPPURAM .................... PETITIONERS ------------------------------ 1. PENATH KHADER, AGED 71 YEARS, S/O. KUNJAMU, PENATH HOUSE, NENMINI P.O., GURUVAYOOR, THRISSUR DISTRICT. 2. BEEVATHUKUTTY, AGED 65, W/O. KHADER, PENATH HOUSE, NENMINI P.O., GURUVAYOOR, THRISSUR DISTRICT. 3. NAZAR, AGED 44, S/O. KHADER, PENATH HOUSE, NENMINI P.O., GURUVAYOOR, THRISSUR DISTRICT. BY ADV. SMT.R.PADMAKUMARI RESPONDENT(S): --------------- M.SHAJITHA, AGED 31 YEARS, D/O. KUNJALASSANKUTTY, MUKRI HOUSE, PALAPPURA AMSOM, KOTTAKKAL DESOM, TIRUR TALUK, P.O.KOTTAKKAL, MALAPPURAM DISTRICT. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) No.285 of 2010 -------------------------------------- Dated this the 24th day of September, 2010. ORDER This petition is for transfer of O.P.No.643 of 2010 of Family Court, Malappuram to Family Court, Thrissur. Husband of the respondent expired on 24.02.2009. Petitioner Nos.1 and 2 are his parents and petitioner No.3, his brother. They are residing at Guruvayoor while respondent, aged about 31 years is residing at Kottakkal, in Malappuram District. She filed O.P.No.643 of 2010 against petitioners for return of gold ornaments and other reliefs. Petitioners say that Family Court, Malappuram has no territorial jurisdiction to entertain the petition. It is stated that consequent to the death of husband of respondent on 24.02.2009 petitioners asked respondent to receive her share in the property of her deceased husband and thereon she filed O.P.No.643 of 2010. It is also stated that petitioner Nos.1 and 2 are aged and unable to travel from Guruvayoor to Malappuram and that petitioner No.3 is employed abroad. Hence the request for transfer. 2. So far as lack of territorial jurisdiction for Family Court, Malappuram pleaded by petitioners is concerned, that is a matter which petitioners could raise before that court and request that court to enter a decision Tr.P(C) No.285/2010 2 on that question. There is no reason why this Court should interfere in the matter at this stage at the first instance. Hence the request for transfer on that ground cannot be entertained. 3. So far as inconvenience of petitioners pleaded in this petition is concerned, it is true that petitioner Nos.1 and 2 are aged. Learned counsel states that petitioner No.1 is a patient as well. But petitioner No.3 is aged only 44 years. Assuming that he is abroad it is open to the petitioners to engage a power of attorney to conduct the case. It is not as if petitioners are required to appear in court on all posting dates. Except when their physical presence is necessary they can appear through counsel. Respondent is aged about 31 years and is residing at Kottakkal in Malappuram District. The Supreme Court in Sumitha Singh v. Kumar Sanjay and another (AIR 2002 SC 396) and Arti Rani v. Dharmendra Kumar Gupta [(2008) 9 SCC 353] has stated that while considering request for transfer of matrimonial proceedings convenience of the wife has to be looked into. True that does not mean that inconvenience if any of all other parties to the proceeding is to be ignored. If the case is transferred to Family Court, Thrissur, respondent who is aged about 31 years has to travel the long distance from her place of residence (Kottakkal) to Thrissur and probably she may have to be accompanied by somebody which involves expenses as well. On the other hand, petitioners if at all petitioner No.3 is working abroad, can engage a suitable person as their power of attorney to Tr.P(C) No.285/2010 3 conduct the case and they need appear in Family Court, Malappuram only when their physical presence is required. On a consideration of all relevant matters I am persuaded to think that comparative hardship is more on the respondent if transfer requested is allowed than the hardship which petitioners may have to suffer if request for transfer is not allowed. In the circumstances I do not consider it just, proper or necessary to order transfer of O.P.No.643 of 2010 to Family Court, Thrissur. Resultantly leaving the issue regarding jurisdiction (if any) to be decided by the Family Court, Malappuram this petition is dismissed. I.A.No.2352 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks