IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 Tr.P(C).No. 57 of 2011 TO TRANSFER OP(HMA) NO.463/2009 FROM FAMILY COURT, ALAPPUZHA TO THE FAMILY COURT, THIRUVANANTHAPURAM. PETITIONER: -------------------- K.R.LOVELY, D/O.R.SANTHAMMA, AGED 33 YEARS, LALY HOUSE, TC.3/1384-1, LNJ-21, PATTAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON SRI.M.S.KIRAN RESPONDENT: --------------- BIJU.C., S/O.CHELLAPPAN, RESIDING AT KOKAMPARAMBIL, KALLUVALA, MAVELIKKARA P.O., ALAPPUZHA DISTRICT, PIN - 690 101. BY ADV. SMT.P.K.SANTHAMMA THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Tr.P.(C). NO. 57 OF 2011 ------------------------------------------------------ Dated this the 9th day of March, 2011 JUDGMENT The petitioner is the wife of the respondent. Their marriage took place on 10.1.2003 at Paruthipara, within the jurisdiction of the Family Court, Thiruvananthapuram. A mentally challenged child was born in that wedlock. The petitioner relied on Annexure 3 certificate of disability issued by the Department of Health Services, Government of Kerala to show that the child is suffering from mental retardation of severe nature and the disease is not likely to improve. 2. The relationship between the parties became stained. The husband filed O.P.No.1006 of 2005 before the Family Court, Alappuzha for restitution of conjugal rights. The wife filed O.P.No.619 of 2005 before the Family Court, Thiruvananthapuram for divorce. She also filed M.C.No.192 of 2005 claiming maintenance for the child. O.P.No.634 of 2006 was filed by the wife for recovery of money from the respondent. All the cases filed by the wife were before the Family Court, Thiruvananthapuram. Later, all Tr.P.(C) NO.57 OF 2011 :: 2 :: the cases filed by the wife were dismissed for default. The case of the petitioner is that, at the instance of the counsellors and mediators, there was some sort of settlement between the parties and the respondent/husband agreed to take the petitioner with him and that was the reason why all the cases were subsequently dismissed for default. The respondent/husband disputes this statement. According to him, the wife was reluctant to appear before the Family Court. The husband had to approach this Court for early disposal of the cases pending before the Family Court, Thiruvananthapuram by filing W.P.(C) No.33504 of 2008. This Court sought for remarks from the Family Court, Thiruvananthapuram. The Family Court, Thiruvananthapuram reported that the cases could not be disposed of due to heavy pendency of cases. A direction was issued to the Family Court, Thiruvananthapuram to dispose of the cases expeditiously. Later, all the cases filed by the wife were dismissed for non-appearance. The petitioner states that she has filed applications to restore the aforesaid three cases to file. 3. Now, only one case is pending between the parties, ie. O.P. (HMA) No.463 of 2009 before the Family Court, Alappuzha, filed by Tr.P.(C) NO.57 OF 2011 :: 3 :: the respondent for divorce. The petitioner/wife seeks to transfer that case to the Family Court, Thiruvananthapuram. This prayer is stoutly opposed by the husband. As stated earlier, the marriage between the parties took place within the jurisdiction of Family Court, Thiruvananthapuram. The petitioner is residing at Thiruvananthapuram. She has to look after her mentally challenged child aged six years. The respondent is residing at Mavelikkara. It is stated that the distance from Thiruvananthapuram to Alappuzha is 140 Kms. The wife says that she is not in a position to attend the Family Court, Alappuzha, after travelling such a long distance, particularly, since her child is a mentally challenged child. The learned counsel appearing for the respondent/husband submitted that the Transfer Petition is filed only to harass the respondent. If the case is transferred to the Family Court, Thiruvananthapuram, the wife will not appear and she will get adjournment after adjournments, in which case, the respondent/ husband would be put to great hardship. 4. The Supreme Court in Sumitha Singh v. Kumar Sanjay and another (2001) 10 SCC 41), Mangla Patil Kale v. Sanjeev Tr.P.(C) NO.57 OF 2011 :: 4 :: Kumar Kale ((2003) 10 SCC 280) and Rajwinder Kaur v. Balwinder Singh ((2003) 11 SCC 726) held that the convenience of the wife should be taken note of while considering the question of transfer. 5. Taking into account the facts and circumstances of the case, the general convenience of parties, the distance from Thiruvananthapuram to Alappuzha, the fact that the child of the petitioner is mentally challenged and the comparative hardship that would be caused to the parties if no transfer is made, I am of the view that this is a fit case where the case should be transferred from the Family Court, Alappuzha to the Family Court, Thiruvananthapuram. 6. Accordingly, the Transfer Petition is allowed. O.P.(HMA) No.463 of 2009, pending before the Family Court, Alappuzha shall stand transferred to the Family Court, Thiruvananthapuram. The Family Court, Alappuzha shall transmit the records to the Family Court, Thiruvananthapuram. The parties shall appear before the Family Court, Thiruvananthapuram on 8.4.2011. Tr.P.(C) NO.57 OF 2011 :: 5 :: Taking note of the apprehension voiced by the respondent, I direct the Family Court, Thiruvananthapuram not to grant unnecessary adjournments at the instance of the petitioner. The Family Court, Thiruvananthapuram shall also consider the request of the respondent/husband to exempt him from personal appearance and the respondent need be directed to appear only when his presence is absolutely essential. (K.T.SANKARAN) Judge ahz/