IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Tr.P(C).No. 38 of 2009() ------------------------ OP(DIV)NO.1282/2008 of FAMILY COURT, ALAPPUZHA .................... PETITIONER (S): RESPONDENT: ------------------------------------------------- ELIZABETH KURIAN @ DAYANA, D/O.KURIAN, 'PARAPPEL' HOUSE, THIRUVARPPU P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. MR.SUNIL CYRIAC RESPONDENT(S): PETITIONER: ----------------------------------------------- MATHEW MATHAI, S/O.MATHAI, ADHONIL GRACE VILLA, PATTOR P.O., EDAPON MURI, NOORANADU VILLAGE, MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADV. MR.RINNY STEPHEN CHAMAPARAMPIL THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009 ALONG WITH TPC NO. 81 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` Tr.P.(C) Nos. 38 and 81 OF 2009 ```````````````````````````````````````````````````` Dated this the 10th day of July, 2009 O R D E R These petitions have been filed under section 24 of the CPC. Tr.P.C.No.38/09 is filed by the wife and the other Tr.P.C. 81/09, by the husband and his father. The husband has filed the petition for dissolution of marriage as OP.1282/08 before the Family Court, Alappuzha, and the wife has filed two petitions, one as OP.38/09 for return of her ornaments and valuables allegedly retained by the husband and his father, and another petition, MC.18/09, for maintenance under section 125 Cr.P.C. from the husband. Both petitions are before the Family Court, Ettumanoor. The husband in his petition seeks for transfer of the petitions filed by the wife from the Family Court, Ettumanoor to the Family Court, Alappuzha, and the wife in her petition the transfer of the petition filed by the husband from the Family Court, Alappuzha to the Family Court, Ettumanoor. 2. I heard the counsel on both sides. On behalf of the husband, the learned counsel for the husband would submit that Tr.P.C.Nos.38&81/09 : 2 : he is at present employed in Dubai and the case on his behalf is attended to by his father who is pretty old. He is suffering from urinary tract infection and if a transfer is ordered as desired by the wife, it would cause severe hardship and irreparable injury, submits the counsel. It is further submitted that when the wife obtained an order of stay from this court in her petition, she suppressed the fact that she had received a notice in the petition filed by the husband and that later she was declared exparte on her failure to appear before the court. After noticing the above suppression, it is submitted, the stay granted was vacated. Though the wife was declared exparte in the petition filed by the husband, in view of the pendency of the transfer petitions, it is submitted, Judge, Family Court, Alapuzha, has not disposed that petition. The circumstances as above, according to the counsel, for the husband, disentitled the wife to seek transfer. Further submission of the counsel is that from her place of residence by a boat journey she can reach the Family Court, Alappuzha, for which she need only a sum of Rs.10/-. On that count also, it is submitted no inconvenience will be caused to wife if the petitions are transferred to the Family Court, Alappuzha. Whereas the case of Tr.P.C.Nos.38&81/09 : 3 : the wife as seen from her petition and the submissions made by her counsel is that she is unable to maintain herself and that compelled her to file a petition seeking maintenance from her husband. Her inability to go over to Alappuzha to defend the case prosecuted at that place by the husband is also canvassed for transfer of that case to the Family Court, Etumanoor where the other two petitions filed by her are pending. 3 Having regard to the submissions made by the counsel and the facts and circumstances presented, at this stage, this court cannot go into the merit of the allegations presented by both parties in their respective petitions seeking the reliefs thereunder. All the same, it is evident that the husband is employed in a foreign country and, normally, the transfer of the case from the Family Court, Alappuzha to the Family Court, Ettumanoor is unlikely to cause any hardship or injury to him. True, it is his case that on his behalf the cases are conducted by his father, who is stated to be pretty old and suffering from some ailments. He is also a party in one of the proceedings. But, the concern for the destitute wife, who is separated from her husband and has already sought maintenance from her husband cannot be ignored. It is Tr.P.C.Nos.38&81/09 : 4 : easy to say that she can spent a sum of Rs.10/- for the boat journey to go over to the court at Alappuzha. Whether she is possessed of the means is also a question to be considered especially when she has already filed a petition seeking maintenance from her husband alleging that he has neglected to maintain her and she is not possessed of sufficient means for livelihood. The husband has no case that he is discharging the statutory obligations expected from him. That also has to be taken into consideration by this court in deciding the merit of the transfer canvassed by the parties in the respective petitions. Having regard to the totality of the facts and circumstances presented, I find the transfer of OP.1282/08 pending on the file of the Family Court, Alappuzha to the Family Court, Ettumanoor, where the two petitions filed by the wife are pending is necessary to satisfy the ends of justice. On such transfer, the Judge, Family Court, Ettumanoor shall examine the question whether the wife has sufficient cause for her nonappearance before the Family Court, Alappuzha, when it was posted for her appearance, and then proceed with the case. The learned counsel for the husband submitted that the aged father of the husband may be granted Tr.P.C.Nos.38&81/09 : 5 : exemption from personal appearance before the Family Court, Ettumanoor. He is made a party in a civil suit and as such his presence in the Family Court, Ettumanoor appears to be unnecessary. If at all, his presence is insisted upon he can move an application for exemption and the court shall consider it sympathetically considering his age and ailment which he is stated to be suffering from. The presence of the husband who is stated to be employed abroad should also be taken note to avoid insisting for his presence on all postings, but, if the court order his presence for the counseling or such other purposes necessary for a fair and proper adjudication of the matrimonial disputes pending between the parties, he has to appear before that court. Subject to the above observations, OP.1282/08 on the file of the Family Court, Alappuzha is transferred to the Family Court, Ettumanoor. The Judge, Family Court, Alappuzha shall transmit the records of the above case without delay. (S.S. SATHEESACHANDRAN, JUDGE) aks