IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 Tr.P(Crl.).No. 52 of 2011(F) ------------------------------------- TO TRANSFER MCDV.15/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKKARA TO ANY OF THE MAGISTRATE COURTS AT ERNAKULAM ............................................................................................................................ PETITIONER : ---------------------- ANNIE JACOB, AGED 28 YEARS, D/O. JACOB VARGHESE, NOW RESIDING AT 'VIMALA', HOUSE NO.44/3487, KOLLAMPARAMBIL ROAD, DESABHIMANI JUNCTION, KALOOR, KOCHI. BY ADV. SMT.S.KARTHIKA RESPONDENTS : ------------------------- 1. BABY JOHN, S/O. M.JOHN, AMBALLOR HOUSE, AMBALAKKARA P.O., VALAKOM, KOTTARAKKARA - 691 532. 2. M.JOHN, S/O. MATHUNNI, AMBALLOR HOUSE, AMBALAKKARA P.O., VALAKOM, KOTTARAKKARA - 691 532. 3. BABYKUTTY ABRAHAM, KANCHINETH HOUSE, AMBALAKKARA P.O., VALAKOM, KOTTARAKKARA - 691 532. 4. PRAKASH, AMBIYIL HOUSE, NEAR NIRMALA HOUSE, KOTTARAKKARA - 691 532. 5. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31. ADVS. SRI.M.K.CHANDRA MOHANDAS FOR R1-R3 SRI.R.NIKHIL FOR R1-R4 SRI.SHAKTHI PRAKASH FOR R4 PUBLIC PROSECUTOR SMT. S HYMA FOR R5. THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- Tr.P(Crl.).No. 52 of 2011(F) APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A : COPY OF THE FIR LODGED IN CONNECTION WITH THE INCIDENT. ANNEXURE B : COPY OF THE STATEMENT GIVEN BY THE PETITIONER ON 22.02.2011. ANNEXURE C : COPY OF THE ACCIDENT REGISTER CUN WOUND CERTIFICATE DATED 20.02.2011 ANNEXURE D : COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT. ANNEXURE E : COPY OF THE PETITION SUBMITTED BY THE RESPONDENT FOR REFERRING THE MATTER TO THE ADALATH. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- N.K.BALAKRISHNAN, J ------------------------------------------------- Transfer Petition (Crl) No.52 of 2011 -------------------------------------------------- Dated this the 28th day of October, 2011 O R D E R The 1st respondent and the petitioner are husband and wife. They are advocates. They started fighting each other. Their matrimonial dispute has not been settled so far. The complainant wife in M.C(DV) No.15/2011, which is pending on the file of Judicial First Class Magistrate Court-I, Kottarakkara is the petitioner herein. Her husband is the 1st respondent in that case. The 2nd respondent is her father-in-law. The other respondents are his uncle and cousin. The request in this petition is to order transfer of M.C(DV)No.15/2011 from Judicial First Class Magistrate Court-I, Kottarakkara to any of the criminal courts at Ernakulam. It is stated that since her husband is an advocate practising at Kottarakkara and since she is now settled at Ernakulam, it is causing much difficulty for her to attend the Court at Kottarakkara to conduct the case. So many other difficulties have also been projected by her to substantiate her contention that the case may have to be transferred from the Court at Kottarakkara to Ernakulam. It would be a misadventure T.P(Crl) No.52/2011 2 to probe into the probity of the allegations and counter allegations made by the parties in this case.. 2. The question is whether the case pending on the file of Judicial First Class Magistrate Court-I, Kottarakkara should be transferred to a court at Ernakulam. The petitioner contends that because of the hostile environment created by the 1st respondent, who is an advocate practising at Kottarakkara, she had to shift her practice to High Court. It is also stated that she used to get threatening messages from her husband. These allegations are countered by the respondents. Both sides submit that mediators have intervened in the matter and a marathon discussion was had to have a settlement arrived at and though at one point of time it was almost settled, subsequently, it did not materialise. 3. The petitioner contends that even after filing of the complaint she used to get several threatening calls in her mobile phone from her husband or his men. This allegation is also resisted by the respondents. The main grievance of the petitioner is that as the 1st respondent is a practising advocate at Kottarakkara and since she has shifted her practice to T.P(Crl) No.52/2011 3 Ernakulam much hardship is caused to her to appear before the Court at Kottarakkara. The other grievance is that even her application for interim orders in the case filed by her has not been passed by the Court below. The learned counsel for the respondents would submit that no difficulty was created by the respondents in disposing of the applications for interim orders passed by the petitioner. No complaint was made against the presiding officer and so the grounds as aforesaid will not justify the transfer of the case from Kottarakkara to Ernakulam. 4. Learned counsel for the petitioner has relied on the decision in Anjali Ashok Sadhwani V. Ashok Kishinchand Sadhwani AIR (2009 (SC) 1374). In that case the matter was pending before the Family Court at Indoor. Based on the request made by the wife, the case was transferred to the Family Court at Bandra, Mumbai. The decision in Priyanka Batra V. Manish Batra (2005(12) SC 236) was also relied upon, where inspite of the fact that the husband offered to bear all travel and stay expenses of the petitioner wife, the Apex Court was declined to set aside the order of transfer made on the request of the wife for the transfer of the case from the Family Court at Bangalore to T.P(Crl) No.52/2011 4 Family Court at Jabalpur. Hence the learned counsel submits that the request made by the wife in this case can be accepted. Another decision of the Apex Court in Vinisha Jitesh Tolani Alias Manmeet V. Jitesh Kishore Tolani reported in (2010(5) SCC 748) has also been relied upon by the learned counsel for the petitioner, where also the transfer petition moved by the wife was allowed by the Apex Court. 5. The learned counsel for the respondent would submit that the facts of all those cases are entirely different. All those cases were matrimonial disputes which were pending before the Family Court. Here the complaint filed by the wife is under the Protection of Women from Domestic Violence Act. The allegation of cruelty have been made not only against the 1st respondent but also against his father, uncle and cousin. It is stated that his father and uncle are very old persons and so if the case is transferred as requested by the petitioner, the undue hardship will be caused especially to those respondents. The learned counsel for the respondents has relied upon the decision of the Apex Court in Shree Baidyanath Ayurved Bhawan Pvt. Ltd. V. State of Punjab and Ors. (2009) 8 SCC 389) in support of T.P(Crl) No.52/2011 5 his submission that before an order of transfer is effected, the convenience not only for the petitioner but also of the respondents and witness, including the larger interest of the society, should be taken into consideration. The Apex Court has in that case followed the decision in Abdul Nazar Madani V. State of Tamil Nadu & another (2000) 6 SCC 204). The learned counsel for the petitioner submits that, that was pertaining to a criminal case and not a case of this nature but here it is only a family dispute. A decision in Jyoti Mishra V. Dhananjaya Mishra 2010(3) KLT Suppl. 177 (SC) : (2010) 8 SCC 803 has also relied upon by the learned counsel for the respondents. That was also a criminal case which was sought to be transferred from one Court to another court. But the learned counsel for the respondents would submit that the complaint filed by the petitioner before the Judicial First Class Magistrate Court- I, Kottarakkara is actually one, where the allegations are that the respondents have subjected the petitioner to cruelty etc. The fact that the 1st respondent is practising at Kottarakkara is not disputed. Therefore there would be embarrassment for the presiding officer and to the 1st respondent and also difficulty for T.P(Crl) No.52/2011 6 the petitioner to have the case conducted before the Judicial First Class Magistrate Court-I, Kottarakkara. But at the same time it would cause hardship to the respondents if the petition filed under the provisions of Protection of Women from Domestic Violence Act is transferred from the court at Kottarakkara to Ernakulam which is far way from Kottarakkara. 6. Therefore, the request for transfer of the case from Kottarakkara to Ernakulam cannot be allowed. But at the same time to meet the ends of justice and to avoid embarrassment of the concerned persons, I find that it is just and proper that the case pending on the file of Judicial First Class Magistrate Court-I, Kottarakkara is transferred to Judicial First Class Magistrate Court, Alappuzha. It is true that the distance from Alappuzha to Kottarakkara may be slightly more than the distance from Ernakulam to Alappuzha. However considering all aspects, I find that it would be the best course that can be adopted by this Court. 7. With regard to the grievance of the respondent that some of the respondents are aged persons, it would be open to the respondents to move the Judicial First Class Magistrate T.P(Crl) No.52/2011 7 Court, Alappuzha for exemption from personal attendance before that Court. This petition is disposed of as stated above. The Judicial First Class Magistrate Court-I, Kottarakkara will transfer the records to Judicial First Class Magistrate Court, Alappuzha. The parties will enter appearance before the Judicial First Class Magistrate Court, Alappuzha on 23.11.2011. Sd/- N.K.BALAKRISHNAN JUDGE //True Copy// P.A to Judge ab