IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 Tr.P(C).No. 108 of 2010() ------------------------- MC.285/2008 of FAMILY COURT,ERNAKULAM .................... PETITIONERS: -------------------- 1. ALICE, AGED 45 YEARS, D/O. CHACKO, VELLAKATTEL VEEDU, KIZHAKOMBU KARA, KOTTHATUKULAM VILLAGE, KOOTHATTUKULAM, NOW RESIDING AT MALIACKAL HOUSE, THRIKKODITHANAM.P.O, CHANGANACHERRY. 2. ALVI VINOD, AGED 14 YEARS, REPRESENTED BY HER MOTHER AND NEXT FRIEND ALICE. 3. ALCY VINOD, AGED 11 YEARS, REPRESENTED BY HER MOTHER AND NEXT FRIEND ALICE. BY ADV. SRI.P.HARIDAS RESPONDENTS: --------------- 1. VINOD JOSEPH, AGED 45 YEARS, S/O. JOSEPH, VELLAKKATTEL HOUSE, KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK. 2. V.C. JOSEPH, AGED 68 YEARS, VELLAKKATTEL HOUSE, KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK. 3. SARAMMA JOSEPH, AGED 64 YEARS, W/O. JOSEPH, VELLAKKATTEL HOUSE, KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK. ADV. SRI.P.K.VARGHESE FOR R2 SRI.P.K.VARGHESE FOR R1 & R3 SRI.K.S.ARUN KUMAR FOR R1 & R3 SMT.M.N.MAYA FOR R1 & R3 THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Tr.P.(C).No. 108 of 2010 --------------------------------------- Dated this 14th day of June, 2010 ORDER Requesting transfer of several proceedings, petitioners have chosen to file a single petition under Section 24 of the Code of Civil Procedure (for short, “the Code”) which is not approved by Rule 57 (3) of the Civil Rules of Practice. The Registry ought to have noted the defect and returned the petition to cure the defect by filing separate petitions in respect of cases other than the one which respondents may have elected to proceed with in this petition. Since the petition was filed on 06-04-2010, respondents have been invited to answer the single petition and they did not raise any objection until now I do not consider it necessary to return the petition to cure the defects which is only procedural in nature. I proceed to dispose of the petition on merit. 2. Petitioners are wife and children of respondent No.1. Respondent No.1 is now working in Saudi Arabia. On account of estrangement in family relationship parties have filed several proceedings in the Family Court at Ernakulam. One is M.C.No.285 of 2008 filed by petitioner claiming maintenance from respondent No.1. It is not disputed that the said petition has already been Tr.P.C.No.108 fo 2010 : 2 : disposed of allowing maintenance to petitioner Nos.2 and 3, children but refusing to pay maintenance to petitioner No.1. Hence that petition has to be delinked from the prayer in this petition. 3. Other cases are the following: (1)O.P.No.12 of 2009 filed by petitioner No.1 seeking partition of the properties referred to therein. (2)O.P.No.1394 of 2008 filed by petitioner No.1 for recovery of patrimony and other amounts from husband and his parents (respondent Nos.2 and 3) (3)O.P.No.1671 of 2008 filed by respondent No.1/husband for a declaration that all his exclusive right over the properties have to be partitioned in O.P.No.12 of 2009. (4)O.P.No.1452 of 2009 had filed by respondent No.1 for restitution of conjugal rights. (5)G.O.P.No.1453 of 2009 had filed by respondent No.1/husband for custody of petitioner Nos.2 and 3, minor children. It is not disputed that of the above cases except M.C.No.285 of 2008 are pending decision in the Family Court, Ernakulam. The request of Tr.P.C.No.108 fo 2010 : 3 : petitioner is to transfer the said case to Family Court, Thiruvalla. Reason stated is inconvenience of petitioner to travel all the distance from her place of residence of Thrikkodithanam to Ernakulm to contest the case. It is stated that petitioner has employment in a private institution at Thrikkodithanam and that it is difficult for her to get leave from that institution and come to Ernakulam to contest the case. Petitioner Nos.2 and 3 studying at Thrikkodithanam (they are not parties in any of the said proceedings except G.O.P.No.1453 of 2009 in which their custody is sought for). According to petitioner No.1 she may have to take the children to the Family Court, Ernakulam in connection with that case. In the circumstances her request is to transfer the cases to the Family Court, Thiruvalla. Learned counsel for respondent opposed the petition. It is stated that though respondent No.1 is now working in Saudi Arabia, respondent Nos.2 and 3, his parents are aged about 68 and 64 years, respectively and that they have to travel all the way from Koothattukulam to Thiruvalla if the cases are transferred to the court at Thiruvalla. 4. So far as request for transfer is concerned, though it is not an absolute rule, the Supreme Court has stated in Sumitra Singh Vs. Kumar Sanjay (AIR 2002 SC 396) and Arti Rani Lrs. Pinki Devi and Another Vs. Darmendra Kumar Gupta (2008(9) SCC 353) that convenience of wife has to be considered. It is not disputed Tr.P.C.No.108 fo 2010 : 4 : that petitioners are residing at Thrikkodithanam which is much closer to Thiruvalla when compared to Ernakulam. Petitioner No.1 is working as a nurse in a private hospital at Thiruvalla. There is weight in her contention that she may not be able to get leave from the hospital and go to the Family Court at Ernakulam. So far as inconvenience of respondent Nos.2 and 3 is concerned, it is sufficient to direct that their physical presence in the transferee court need not be insisted unless it is necessary for trial of the cases. It is open to respondent Nos.2 and 3 to appear through counsel. Having regard to the facts and circumstances of the case I am persuaded to allow the petition. Resultantly this petition is allowed in the following lines: (i)O.P.No.12 of 2009, O.P.Nos.1394 of 2008, O.P.No.1671 of 2008, O.P.No.1452 of 2009 and G.O.P.No.1453 of 2009 pending in the Family Court, Ernakulam are withdrawn from that court and made over to Family Court, Thiruvalla for trial and disposal. (ii) The transferor court shall transmit the records of the case to the transferee court with due intimation to the counsel for parties as to the date of appearance in the transferee court. Tr.P.C.No.108 fo 2010 : 5 : (iii) I make it clear that so far as respondent Nos.2 and 3 are concerned, their physical presence in the transferee court need not be insisted unless it is necessary for trial of this case. It will be open to them to appear through counsel and seek exception from appearance as and when it is required. (THOMAS P JOSEPH, JUDGE) Sbna/-