IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Tr.P(C).No. 51 of 2009 OP.405/2008 OF FAMILY COURT, KANNUR PETITIONER/1ST COUNTER PETITIONER IN OP ----------------------------------------------------------- LITTY SUBIN, D/O.THOMAS NINAN,32 YRS, PALAKUNNEL LIJU VILLA,KOCHU ROAD, MAMMOOD.P.O, CHANGANACHERRY KOTTAYAM,REP; BY HER MOTHER LILLYKUTTY THOMAS, W/O.THOMAS NINAN,55 YRS OF AGE PALAKUNNEL LIJU VILLA KOCHU ROAD, MAMMOOD.PO, CHANGANACHERRY, KOTTAYAM. BY ADV. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE RESPONDENT: PETITIONER ------------------------- SUBIN JOSE, S/O.K.T.JOSEPH KOCHU KALAM, 39 YRS, SREYAS HOUSE, NIRMALAGIRY.PO,KANNUR, NOW WORKING AT COMBI BLOC, P.B.NO.54335,DUBAI AIRPORT, FREE ZONE, U.A.E. SRI.M.V.AMARESAN THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Tr.P.(C) NO. 51 OF 2009 ------------------------------------------------------ Dated this the 19th February, 2009 O R D E R The petitioner, Litty Subin, is represented by her mother Lillykutty Thomas. The prayer in the Transfer Petition is to transfer O.P.No.405 of 2008, pending before the Family Court, Kannur to the Family Court, Ettumanoor, where M.C.No.277 of 2008 and O.P.No.1213 of 2008 are pending. 2. The respondent/husband filed O.P.No.405 of 2008 before the Family Court, Kannur against the petitioner for divorce. The petitioner filed M.C.No.277 of 2008 against the respondent before the Family Court, Ettumanoor under Section 125 of the Code of Criminal Procedure, claiming maintenance. She also filed O.P.No.1213 of 2008 before the Family Court, Ettumanoor, against the respondent for restitution of conjugal rights. All these cases are pending. 3. The petitioner belongs to Ettumanoor. The marriage between the petitioner and the respondent was solemnized at Changanacherry. Ettumanoor as well as Changanacherry are in Kottayam District. The TR.P.(C) NO.51 OF 2009 :: 2 :: respondent's house is at Kannur. He is employed in a Gulf country. The wife was also residing with him abroad. It is admitted by both parties that they came to India and thereafter, the wife has not returned to Gulf along with the husband. 4. The petitioner says that she is suffering from mood disorder and she is not in a position to travel to Kannur, which is situated more than 300 kilometres away from Ettumanoor. Her brother died recently in January, 2009. She has only her aged parents. There is nobody to accompany her to Kannur. It is also averred in the application for transfer that the respondent/husband is having properties at Changanacherry. 5. The respondent filed a counter affidavit and contended that the petitioner suppressed material facts in the application for transfer. According to him, the Transfer Petition would indicate that her father is not alive. Learned counsel for the petitioner, with reference to page 4 of the Transfer Petition, submitted that this is not true and that she has stated that her parents are alive. The respondent also says that mood disorder is not a grave disease which will disable the petitioner to go to Kannur and attend the Family Court. In the counter affidavit, the respondent has stated that the petitioner may be directed to appear before Court to satisfy whether the submission made by her is true or not. TR.P.(C) NO.51 OF 2009 :: 3 :: 6. The question whether the petitioner is suffering from mood disorder or mental depression need not be considered in this Transfer Petition. That is a matter to be decided by the Family Court, if that question arises for consideration. The fact remains that the Transfer Petition was filed by the petitioner represented by her mother. In the maintenance case also, there is indication that the petitioner is represented by her mother. In the Original Petition filed for restitution of conjugal rights as well, the petitioner is represented by her mother. 7. The respondent/husband is the respondent in two cases pending before the Family Court at Ettumanoor. Necessarily, he has to attend the Family Court at Ettumanoor. He has no case that he has made an application for transfer of those cases to Family Court, Kannur. In the cases pending before the Family Court, Ettumanoor, most probably, the parties will have to undergo counselling. In the case pending before the Family Court, Kannur also, the same process will have to go on. The parties are common. The matters to be proved are also similar and, most probably, the witnesses to be examined are also common. It is also just and proper that all these cases are considered by the same Family Court. Then, which Family Court should consider these cases is the question. Whether the wife should go from Ettumanoor to Kannur or TR.P.(C) NO.51 OF 2009 :: 4 :: whether the husband, who is working in Gulf country, should attend the Family Court at Ettumanoor is the question. Taking into account the comparative hardship of the parties, it is only just and proper that all these cases are considered by the Family Court at Ettumanoor. 8. Accordingly, the Transfer Petition is allowed. O.P.No.405 of 2008, pending before the Family Court, Kannur shall stand transferred to the Family Court, Ettumanor, where M.C.No.277 of 2008 and O.P.No.1213 of 2008 are pending. The Registry shall send a copy of this order to the Family Court, Kannur and the Family Court, Ettumanoor. Learned counsel for the respondent submitted that the respondent had come to India for the purpose of counselling in the case pending before the Family Court, Kannur and though the case was posted on three occasions, the petitioner/wife did not turn up. It is also submitted that on all these occasions, the respondent/husband was present. It is submitted by the learned counsel for the respondent that the Family Court, Ettumanoor may be directed to fix a date for counselling sufficiently in advance so that the respondent can come to India and participate in the proceedings in all the three cases. Learned counsel for the respondent also submits that the petitioner may be directed to co-operate with the counselling and the Family Court may be directed not to permit TR.P.(C) NO.51 OF 2009 :: 5 :: the petitioner to indulge in dilatory tactics. The submission made by the respondent is just and reasonable. The Family Court, Ettumanoor shall fix a convenient date for both parties for counselling in all the three cases. Petitioner as well as the respondent shall appear on that date before the Family Court, unless for adequate reasons the Family Court considers that another date is to be fixed for counselling. The Family Court will also see that the process of counselling is over within the least possible time so that the respondent would be able to return to his place of work. (K.T.SANKARAN) Judge ahz/