IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 Tr.P(C).No. 321 of 2008() ------------------------- OP.895/2008 of FAMILY COURT,KOZHIKODE .................... PETITIONER ----------------- SARMILA P., D/O.KUNHUKUTTAN, 'PULLOOR' HOUSE, AKKAPARAMBU P.O. (VIA) KUZHIMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAJESH KORMATH RESPONDENT(S): --------------- JYOTHIKUMAR, S/O.GOVINDAN, 'VADAKKEPARAMBIL HOUSE', MANASSERY P.O KOZHIKODE TALUK, KOZHIKODE DISTRICT. ADV. SRI.K.M.FIROZ THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO. 2735/08 IN TPC 321/08 DISMISSED 27/2/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Tr.P(C).NO. 321 OF 2008 ------------------------------------------ Dated 27th February 2009 O R D E R Petitioner is the wife and respondent, the husband. Petition is filed to transfer O.P.895/2008 pending before Family court, Kozhikode to Family court, Malappuram. O.P.895/2008 was filed by respondent for restitution of conjugal rights. Case of the petitioner is that she is residing at Malappuram and she had filed M.C.707/2005 before Family court, Malappuram claiming maintenance and respondent failed to appear therein and ex-parte order for maintenance was passed and C.M.P143/2007 and C.M.P.263/2008 filed for realisation of maintenance amount are pending before Family court, Malappuram and it is not possible for the petitioner to travel from Malappuram to Kozhikode to contest the case and therefore the case is to be transferred to Family court, Malappuram. 2. Respondent filed a counter affidavit contending that petitioner had sent a notice demanding restitution of conjugal rights on 29/11/2005 and it is Tr.P.C321/08 2 thereafter as a counter blast M.C.707/2005 was instituted by petitioner and on 4/7/2006 he met with an accident and was hospitalised at Medical College, Kozhikode and therefore he could not appear before Family court, Malappuram and later he filed an application to set aside the ex-parte order, but it was dismissed and as respondent could not travel a long distance he could not challenge that order before this court and Family court, Kozhikode alone has jurisdiction to try the case and in any case petitioner is residing at Akkaparambu near Kavunnur and it is nearer to Family court, Kozhikode than Family court, Malappuram and therefore there is no reason to transfer the case to Malappuram as sought for. 3. Petitioner in answer to the allegation in the counter affidavit filed a reply affidavit stating that she has to travel 47 kilometers from Akkaparambu to reach Family court, Kozhikode by Areacode route and from Akkaparambu she has to travel only a distance of 22 kilometers to reach Family court, Malappuram along Kondotty route and therefore Family court, Malappuram is nearer to the petitioner than Family court, Kozhikode and therefore case is to be transferred as sought for. 4. Learned counsel appearing for petitioner Tr.P.C321/08 3 and respondent were heard. 5. It is clear from the submission made by the counsel on both sides that order for maintenance under Section 125 of Criminal Procedure Code was passed by Family court, Malappuram against respondent in M.C.707/2005 and though order was ex-parte and respondent filed an application to set aside ex-parte order, it was dismissed and the order has become final. It is also brought out that two petitions filed in 2007 and 2008 are pending before Family court, Malappuram for realisation of the amount thus due. In such circumstances, respondent has necessarily to appear before Family court, Malappuram at one stage. When that is the position, I find no reason to compel the wife to travel to Family court, Kozhikode to resist the claim for restitution of conjugal right raised by respondent in this case. In such circumstances, petition is allowed. O.P.895/2008 pending before Family court, Kozhikode is withdrawn and transferred to Family court, Malappuram for disposal in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. Tr.P.C321/08 4 uj.