IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Tr.P(C).No. 7 of 2009 TO TRANSFER OP.894/2008 FROM THE FAMILY COURT, THIRUVALLA TO THE FAMILY COURT, KOTTARAKKARA. PETITIONERS: -------------------- 1. SAJI ASHOKAN, S/O.ASHOKAN, AMBADI HOUSE PARUTHIYARA, ODANAVATTOM PO., ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK. 2. G.ASHOKAN, S/O.GOPALAN, AMBADI HOUSE, DO DO. 3. SHEELA ASHOKAN @ RAJESWARI ASHOKAN, W/O.ASHOKAN, AMBADI HOUSE, DO.DO. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM RESPONDENT: --------------- NITHYA SOMAN, D/O.SOMASUNDARA PANICKER, SREESHYLA HOUSE, KUZHIKKALA PO., MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY TALUK. ADV. SRI.V.PHILIP MATHEW THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2009, ALONG WITH TPC NO.40 OF 2009, THE COURT ON 03/04/2009 PASSED THE FOLLOWING: I.A.NO.21/2009 IN TR.P.(C) NO.7/2009 DISMISSED 03/04/2009 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ Tr.P.(C) NOS.7 & 40 OF 2009 ------------------------------------------------------ Dated this the 3rd April, 2009 O R D E R Tr.P.(C) No.7 of 2009 is filed by the husband and his parents while Tr.P.(C) No.40 of 2009 is filed by the wife. The prayer made by the husband and others is to transfer O.P.No.894 of 2008, pending before the Family Court, Thiruvalla to the Family Court, Kottarakkara, to be tried along with O.P.No.620 of 2008. The prayer made by the wife is to transfer O.P.No.620 of 2008, pending before the Family Court, Kottarakkara to the Family Court, Thiruvalla. 2. O.P.No.620 of 2008, on the file of the Family Court, Kottarakkara, was filed by the husband for dissolution of the marriage by a decree of divorce. That Original Petition was filed on 12.8.2008. Notice was served on the wife on 18.8.2008. She entered appearance on 4.9.2008 and counter was filed on 13.11.2008. O.P.No.894 of 2008 was filed by the wife before the Family Court, Thiruvalla, against the husband and his parents for realisation of a sum of Rs.3 lakhs with interest and for return of gold ornaments weighing 145 ½ sovereigns or in the alternative to realise its equivalent value of Rs.13,15,320/-. O.P.No.894 of 2008 was Tr.P.(C) NOS. 7 & 40 OF 2009 :: 2 :: filed on 21.11.2008. The wife filed M.C.No.274 of 2008 against the husband before the Family Court, Thiruvalla claiming maintenance. All the aforesaid three cases are pending. 3. The marriage was solemnized on 27.1.2008 at Chengannur within the jurisdiction of the Family Court, Thiruvalla. The husband belongs to Kottarakkara in Kollam District. The wife belongs to Kuzhikkala in Pathanamthitta District. The husband is admittedly working in the United States of America. According to the husband, the wife is working in Bangalore. According to the wife, she is residing with her parents at Kuzhikkala, Kozhencherry, within the jurisdiction of the Family Court, Thiruvalla. 4. The wife filed a complaint against the husband, his brother and his parents before the Judicial Magistrate of the First Class I, Pathanamthitta alleging offence under Section 498A read with Section 34 of the Indian Penal Code. The complaint was filed on 17.2.2008. The complaint was forwarded to the Police for investigation under Section 156 (3) of the Code of Criminal Procedure and Crime No.498 of 2008 was registered by the Aranmula Police Station. 5. From the above facts, it is clear that the first proceeding was Tr.P.(C) NOS. 7 & 40 OF 2009 :: 3 :: initiated by the wife on 17.2.2008 by filing a complaint against her husband and in-laws. Thereafter, the husband filed O.P.No.620 of 2008 before the Family Court, Kottarakkara. The wife filed O.P.No.894 of 2008 before the Family Court, Thiruvalla only thereafter. The date of filing of M.C.No.274 of 2008 is not stated. There is no mention of the Maintenance Case in the Transfer Petition filed by the husband, probably because he did not receive notice in that Maintenance Case before filing the Transfer Petition. 6. The wife states that her family consists of her father, mother and brother. Her brother is presently working abroad. The wife states that her parents are aged and ailing. It is stated that her father met with a serious road accident recently and he is not in a position to walk. The wife is aged 26 years. It is stated that she would find it difficult to travel alone from her residence to the Family Court, Kottarakkara, which is situated more than 70 Kms. away from her place of residence. The husband states that he is working as Computer Engineer in the United States of America and his affairs are being looked after by his parents. He also states that the Family Court, Thiruvalla has no jurisdiction to entertain O.P.No.894 of 2008. The husband states that his parents are old and sickly and that they are being unnecessarily harassed by the wife by making false claims and initiating malicious prosecution. Tr.P.(C) NOS. 7 & 40 OF 2009 :: 4 :: 7. If the three cases referred to above are to be tried by two different Family Courts, it would be highly inconvenient for the parties to conduct and contest the cases. Out of the three cases, the first in point of time is O.P.No.620 of 2008 filed by the husband. However, action was initiated by the wife earlier in point of time by filing the complaint against the husband, his parents and brother alleging offence under Section 498A read with Section 34 of the Indian Penal Code, the complaint having been filed on 17.2.2008. All the other cases were filed subsequent to the complaint. The husband is admittedly working in United States of America. Therefore, it does not matter much for him whether the cases are tried before the Family Court, Kottarakkara or the Family Court, Thiruvalla. The wife is in India. According to the husband, she is working in Bangalore while according to her, she is residing at Kuzhikkala, within the jurisdiction of the Family Court, Thiruvalla. Whether she is at Kuzhikkala or in Bangalore, it would be convenient for her to conduct the cases in the Family Court, Thiruvalla. Now, the hardship that would be caused to the parents of the husband is to be taken note of. They are residing at Kottarakkara. If O.P.No.620 of 2008 is transferred to the Family Court, Thiruvalla, they will have to attend the Family Court, Thiruvalla. However, their hardship can be minimised by exempting them from personal appearance on occasions where their presence is not Tr.P.(C) NOS. 7 & 40 OF 2009 :: 5 :: necessary. In so far as the parties to the marriage are concerned, they will have to attend the Family Court for counselling and for giving evidence. Considering the comparative hardship of all the parties concerned, I am of the view that the hardship that would be caused to the wife would be greater, if she were to attend the Family Court, Kottarakkara. As stated earlier, there is no mention of M.C.No.274 of 2008, pending before the Family Court, Thiruvalla in Tr.P.(C) No.7 of 2009 filed by the husband. He has not prayed for transfer of M.C.No.274 of 2008 to the Family Court, Kottarakkara. I am not denying the relief to the husband in Tr.P.(C) No.7 of 2009 on this ground, as it would be hyper- technical to take such a view. But, considering all the facts and circumstances of the case, I am of the view that the Transfer Petition filed by the wife requires to be allowed. 8. Accordingly, Tr.P.(C) No.7 of 2009 is dismissed and Tr.P.(C) No.40 of 2009 is allowed. O.P.No.620 of 2008, pending before the Family Court, Kottarakkara shall stand transferred to the Family Court, Thiruvalla, where O.P.No.894 of 2008 and M.C.No.274 of 2008 are pending. The Family Court, Thiruvalla shall consider the request made by any of the parties to exempt them from personal appearance, taking into account the peculiar facts of the case and the inconvenience that would be caused to any such party in appearing before Court on all posting dates. The Family Tr.P.(C) NOS. 7 & 40 OF 2009 :: 6 :: Court shall insist on the personal presence of the parties only when it is necessary. The Registry shall send a copy of this order to the Family Court, Kottarakkara and the Family Court, Thiruvalla. (K.T.SANKARAN) Judge ahz/