IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Tr.P(C).No. 172 of 2010() ------------------------- OP.1357/2009 of FAMILY COURT,THRISSUR .................... PETITIONER ------------------------------ SUNITHA RAJU, D/O. CELINE KAMALA RAJU T.C. NO.10/2025, THOZHUVANCOD LANE, NOW RESIDING AT TC 14/309, ST. XAVIERS COTTAGE, EXTRA POLICE ROAD, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV RESPONDENT(S): --------------- SAJAN PETER, S/O. PETER JOSEPH, PALLATH HOUSE, KEETHOLI, KODUNGALLUR.P.O. THRISSUR DIST. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) No.172 of 2010 -------------------------------------- Dated this the 22nd day of September, 2010. ORDER Since notice to respondent was returned with the endorsement “left India”, this Court directed that notice on the respondent be served on the counsel appearing for him in the court below. Accordingly, notice was served on counsel. Under Rule 59 of the Rules of the High Court of Kerala, 1971 service of notice on counsel appearing for a party in the trial court is sufficient when an appeal or other proceeding is initiated in the High Court before disposal of the main proceeding in the subordinate court. Hence there is sufficient service on respondent. 2. This petition is filed by the wife seeking transfer of O.P. No.1537 of 2009 from Family Court, Thrissur to Family Court, Thiruvananthapuram. That is a petition filed by the respondent/husband seeking a declaration of nullity of his marriage with petitioner. Petitioner has filed C.M.P.No.1933 of 2010 under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Petitioner states that she is a resident of Palayam at Thiruvananthapuram District, is unemployed, has no income of her own and is depending on her parents and finds it difficult to travel the long distance from Thiruvananthapuram to Thrissur. There is nobody to accompany her. Tr.P.(C) No.172/2010 2 3. 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 the husband need not be considered. 4. It is seen from the address of respondent given in the petition that he is residing at Kodungallur in Thrissur District. But as per the endorsement in the notice he is working abroad. Petitioner/wife is staying at Palayam in Thiruvananthapuram District and if the case continued at Family Court, Thrissur she has to travel a long distance to contest the case. She may have to be accompanied by some relatives which involves huge expenses. In these circumstances I am inclined to think that comparative hardship is more on petitioner if the request for transfer is not allowed than the hardship that respondent may be put if the request is allowed. Hence I am inclined to allow this petition. Resultantly this petition is allowed in the following lines: i. O.P. No.1537 of 2009 pending in Family Court, Thrissur is withdrawn from that court and made over to Family Court, Thiruvananthapuram for trial and disposal. Tr.P.(C) No.172/2010 3 ii. The transferor court shall, while transmitting records of the case to the transferee court fix date for appearance of parties in the transferee court with due intimation to the counsel on both sides. iii. It is made clear that except when physical presence of respondent is required in the transferee court it is open to him to appear through counsel. I.A.No.1346 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks