IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 Tr.P(C).No. 204 of 2009() ------------------------- OP.428/2009 of FAMILY COURT, PALAKKAD .................... PETITIONER/(RESPONDENT IN THE COURT BELOW): -------------------------------------------------------------------------------- SHINEY AUGUSTIN, AGED 31 YEARS, D/O.AUGUSTIN K.BAVA, RESIDING AT KOLLEMPARAMBIL HOUSE, CHEMBUMUKKU P.O., KAKKANAD, KOCHI. BY ADV. SRI.S.NIRMAL KUMAR RESPONDENT(S):/(PETITIONER IN THE COURT BELOW): ------------------------------------------------------------------------------------ CHACKO P.MATHEW, AGED 34 YEARS, S/O.MATHAYI, RESIDING AT PAPPALIYIL VEEDU, DAM ROAD, WALAYAR, PALAKKAD. BY ADVS. SRI.S.M.UNNIKRISHNAN, SRI.U.BALAGANGADHARAN. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Tr.P(C) No.204 of 2009 C.R.P. ==================================== Dated this the 05th day of October, 2010 O R D E R This petition is filed by the wife who is a permanent resident of Chembumukku at Kakkanad, in Kochi for transfer of O.P. No.428 of 2009 from Family Court, Palakkad to Family Court, Ernakulam. That is a petition filed by the respondent-husband for restitution of conjugal rights. Respondent is a permanent resident of Valayar in Palakkad District. Petitioner states that she has to travel a long distance of about 150 kms from her place of residence to Palakkad and that there is nobody to accompany her. She also has threat from the respondent if she goes to Palakkad to contest the case. Respondent contends that there is no reason why the case pending in Family Court, Palakkad is to be transferred to Family Court, Ernakulam. According to the respondent there is no other case pending in Family Court, Ernakulam between parties and he faces threat from relatives of petitioner. If he comes to Ernakulam his life will be in danger. 2. Though both sides stated about the alleged threat Tr.P(C) No.204 of 2009 -: 2 :- there is no material on record to come to a conclusion either way. Now I am concerned with the convenience of parties and the comparative hardship they will be put if the petition is allowed or disallowed. Not disputed, petitioner-wife aged about 31 years is residing at Chembumukku, Kakkanad which is very near to Family Court, Ernakulam while Family Court, Palakkad, it is not disputed is about 150 kms away from her place of residence. No doubt, if the case is transferred to Family Court, Ernakulam some inconvenience will be caused to the respondent also since he is a resident of Valayar in Palakkad District. But it is stated by petitioner that there is nobody to accompany her to go to Family Court, Palakkad. At any rate if at all somebody is to accompany her she has to incur expenses for that. 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. That of course does not mean that inconvenience of the husband has to be ignored. Having regard to the relevant facts and comparative Tr.P(C) No.204 of 2009 -: 3 :- hardship that parties have to suffer I am satisfied that comparative hardship which petitioner has to suffer if the case is not transferred is more than the hardship which the respondent has to suffer if transfer is allowed. The difficulty that may be caused to the respondent can be lessened to some extent by permitting him to appear through counsel except when his physical presence is required. Hence I am inclined to allow this petition. Resultantly, the petition is allowed in the following lines: (i) O.P No.428 of 2009 pending in Family Court, Palakkad is withdrawn from that court and made over to Family Court, Ernakulam. (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 on both sides. Tr.P(C) No.204 of 2009 -: 4 :- (iii) It is made clear that except when physical presence of respondent in the transferee court is necessary he can appear through counsel. THOMAS P. JOSEPH, JUDGE. vsv