IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 Tr.P(C).No. 341 of 2010() ------------------------- OP.160/2010 of FAMILY COURT, WAYANAD AT KALPETTA .................... PETITIONER ------------------------------ CHAKKALAKKUNNEN UMMU SELMA, D/O.MOIDEENKUTTY, CHAKKALAKUNNEN HOUSE, THEKKUMPURAM, THUVVUR P.O., MALAPPURAM. BY ADV. SRI.SAJU.S.A RESPONDENT(S): --------------- CHALIYATHODIKA MUHAMMED @ BAPPU, S/O.LATE KOYA, CHALIYATHODI HOUSE, PARAMBODU, KEEZHATTUR P.O., PERINTHALMANNA, MALAPPURAM, (NOW RESIDING AT CHALIYATHODI HOUSE, CHEMBOTTIKUNNU, RANDAMILE, PANAMARAM VIA., KAYAKKUNNU P.O., WAYANAD - 670721). ADV. SRI.MATHEW KURIAKOSE THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) No.341 of 2010 -------------------------------------- Dated this the 10th day of December, 2010. ORDER This petition is filed by the wife for transfer of O.P.No.160 of 2010 from Family Court , Wayanad to Family Court, Malappuram. Petitioner is a resident of Thuvvur in Malappuram District. She filed O.P.No.616 of 2010 and M.C.No.620 of 2010 in Family Court, Malappuram claiming return of ornaments and maintenance and those petitions are pending in that court. While so, respondent filed O.P.No.160 of 2010 in Family Court, Wayanad for restitution of conjugal right. Respondent is a resident of Panamaram in Wayanad District. 2. Application is opposed by the respondent. Respondent has produced a medical certificate dated 01.12.2010 issued by an Ayurveda Physician stating that respondent is suffering from kadeesoola due to lumbar spondylosis and was advised complete bed rest during the period (which is not specified) for restoration of his health. Learned counsel submitted that on account of illness petitioner finds it difficult to travel the whole distance from Panamaram in case the case is transferred to Family Court, Malappuram. Learned counsel suggested that in case the request for transfer is allowed the cases may be brought to Kozhikode so that it is less inconvenient to respondent Tr.P.(C) No.341/2010 2 also. Learned counsel for petitioner states that since petitioner is residing in an interior part of Malappuram District, her going to Kozhikode will cause much hardship to her. 3. Fact remained that two cases filed by petitioner are pending consideration before Family Court, Malappuram and in connection with that case, respondent has either to attend that court or make arrangement for his appearance in that court. Respondent has not so far sought transfer of O.P.No.616 of 2010 and M.C.No.620 of 2010 to Family Court, Wayanad or Kozhikode for any reason whatsoever. True there is a request to transfer the case to Family Court, Kalpetta in the statement filed by counsel for respondent. 4. 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. I stated that petitioner is residing in an interior part of Malappuram District. It will cause much hardship to her to go to Wayanad to contest the case. Going to Kozhikode also would create hardship to her. So far as respondent is concerned, it is true that he has produced a medical certificate but that does not prescribe period of rest. Apart from the medical Tr.P.(C) No.341/2010 3 certificate no material is also produced to prove the alleged illness or treatment. stated therein. The inconvenience that may be caused to the respondent can be reduced by directing that he need appear in the transferee court only when his physical presence is required. Having regard to the facts and circumstances of the case I am inclined to think that comparative hardship is more on petitioner/wife if the request for transfer is not allowed than the inconvenience that may be caused to the respondent/husband if the request is allowed. Considering the hardship of petitioner and circumstances stated above, I am inclined to allow this petition. Resultantly this petition is allowed in the following lines: (i) O.P. No.160 of 2010 pending in Family Court, Wayanad is withdrawn from that court and made over to Family Court, Malappuram for trial and disposal. (ii) The transferor court while transmitting records of the case to the transferee court shall fix the date for appearance of parties in the transferee court with due intimation to the counsel for both parties. (iii) The transferee court shall ensure that O.P.No.160 of 2010 Tr.P.(C) No.341/2010 4 being transferred to that court and O.P.No.616 of 2010 and M.C.No.620 of 2010 pending in that court are posted on the same dates, as far as possible. (iv) It is made clear that except when physical presence of respondent in the transferee court is necessary he can appear through counsel. I.A.No.2760 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks