IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 TR.P(C).NO. 316 OF 2011() ------------------------- OPHM.1672/2011 OF FAMILY COURT,ERNAKULAM .................... PETITIONER: ------------------- ASWATHY RAJ, AGED 27 YEARS, D/O.GOVINDARAJ, RESIDING AT "SREEGOVINDAM", P.O.PANTHEERANKAVU, OLAVANNA AMSOM, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.M.PADMANABHAN SRI.P.A.HARISH RESPONDENT(S): ------------------------ K.T.BINOY, AGED 32 YEARS, S/O.N.R.NAMBIAR, RESIDING AT B3, J.M.APARTMENTS, FREEDOM ROAD, NEAR DESHABHIMANI, KALOOR, ERNAKULAM-682 017. ADV. SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SMT.O.V.BINDU SRI.J.VIMAL SRI.A.VELAPPAN NAIR THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Tr.P(C) No.316 of 2011 ==================================== Dated this the 02nd day of November, 2011 O R D E R Respondent appears through counsel. 2. This petition is filed by the wife seeking transfer of O.P(HMA) No.1672 of 2011 from the Family Court, Ernakulam to the Family Court, Kozhikode. In this proceeding petitioner has stated that she has filed M.C. No.130 of 2011 in the Family Court, Kozhikode claiming maintenance from the respondent. Petitioner has also filed a complaint against the respondent in the court of learned Judicial First Class Magistrate-V, Kozhikode under the Protection of Women from Domestic Violence Act. According to the petitioner, she has to look after her child aged less than 1½ years who is suffering from rickets. She has made certain allegations of cruelty against the respondent due to which according to her she had to flee from her matrimonial home. 3. Learned counsel for respondent stoutly denied all the allegations against the respondent. It is also contended that claim of petitioner that the child is suffering from rickets is not correct and that not even a Medical Certificate is produced to Tr.P(C) No.316 of 2011 -: 2 :- substantiate that contention. It is contended that petitioner is under the control of her relations and that has caused disharmony between petitioner and the respondent. 4. I am not going to the correctness of allegations and counter allegations as to the cause of disharmony between petitioner and the respondent. Assuming that the case of petitioner that the child is suffering from rickets is not proved, fact remains that petitioner has to look after the child aged less than 1½ years. Though at the time this petition was filed M.C. No.136 of 2011 was pending that petition was later allowed in favour of petitioner. Even then, in connection with execution of the order in that petition, petitioner has to go to Family Court, Kozhikode often. May be respondent need not have to attend the said court in connection with execution of the said order. 5. 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. Petitioner is aged 27 years and residing in the suburb of Kozhikode town. She finds it difficult to travel the long distance Tr.P(C) No.316 of 2011 -: 3 :- from her place to residence to Ernakulam to contest the case. She has either to leave the child aged less than 1½ years at home in the care of somebody else or, take the child with her. Both, is likely to cause inconvenience to the petitioner, not to say about the child. She may have to be accompanied by somebody. That involves expenses also. Respondent is residing at Kaloor, Ernakulam and transfer of the case to Kozhikode would cause some inconvenience to him. That can be reduced by permitting him to appear in the transferee court through counsel except when his physical presence is required. Having regard to the circumstances, I am inclined to allow the petition. Resultantly, the Petition is allowed as follows: (a) O.P(HMA) No.1672 of 2011 pending in the Family Court, Ernakulam is withdrawn from that court and made over to the Family Court, Kozhikode. (b) The transferor court while transmitting records of the case to the transferee court shall fix the date for appearance of parties in the Tr.P(C) No.316 of 2011 -: 4 :- transferee court with due intimation to the counsel on both sides. (c) The Family Court, Kozhikode shall, as far as possible post the execution petitions if any filed in M.C. No.130 of 2011 on the dates O.P (HMA) No.1672 of 2011 being transferred to it is posted. (d) It is made clear that except when physical presence of respondent in the transferee court is necessary (in O.P(HMA) No.1672 of 2011), he can appear through counsel in the case. All pending interlocutory applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv