IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 204 of 2009()
1. SHINEY AUGUSTIN, AGED 31 YEARS,
... Petitioner
Vs
1. CHACKO P.MATHEW, AGED 34 YEARS,
... Respondent
For Petitioner :SRI.S.NIRMAL KUMAR
For Respondent :SRI.S.M.UNNIKRISHNAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :05/10/2010
O R D E R
THOMAS P.JOSEPH, J.
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Tr.P(C) No.204 of 2009 C.R.P.
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Dated this the 05th day of October, 2010
O R D E R
This petition is filed by the wife who is a permanent resident
of Chembumukku at Kakkanad, in Kochi for transfer of O.P.
No.428 of 2009 from Family Court, Palakkad to Family Court,
Ernakulam. That is a petition filed by the respondent-husband for
restitution of conjugal rights. Respondent is a permanent resident
of Valayar in Palakkad District. Petitioner states that she has to
travel a long distance of about 150 kms from her place of
residence to Palakkad and that there is nobody to accompany her.
She also has threat from the respondent if she goes to Palakkad to
contest the case. Respondent contends that there is no reason
why the case pending in Family Court, Palakkad is to be
transferred to Family Court, Ernakulam. According to the
respondent there is no other case pending in Family Court,
Ernakulam between parties and he faces threat from relatives of
petitioner. If he comes to Ernakulam his life will be in danger.
2. Though both sides stated about the alleged threat
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there is no material on record to come to a conclusion either way.
Now I am concerned with the convenience of parties and the
comparative hardship they will be put if the petition is allowed or
disallowed. Not disputed, petitioner-wife aged about 31 years is
residing at Chembumukku, Kakkanad which is very near to
Family Court, Ernakulam while Family Court, Palakkad, it is not
disputed is about 150 kms away from her place of residence. No
doubt, if the case is transferred to Family Court, Ernakulam
some inconvenience will be caused to the respondent also since
he is a resident of Valayar in Palakkad District. But it is stated by
petitioner that there is nobody to accompany her to go to Family
Court, Palakkad. At any rate if at all somebody is to accompany
her she has to incur expenses for that.
3. 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. That of course
does not mean that inconvenience of the husband has to be
ignored. Having regard to the relevant facts and comparative
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hardship that parties have to suffer I am satisfied that
comparative hardship which petitioner has to suffer if the case
is not transferred is more than the hardship which the respondent
has to suffer if transfer is allowed. The difficulty that may be
caused to the respondent can be lessened to some extent by
permitting him to appear through counsel except when his
physical presence is required. Hence I am inclined to allow this
petition.
Resultantly, the petition is allowed in the following lines:
(i) O.P No.428 of 2009 pending in Family
Court, Palakkad is withdrawn from that court and
made over to Family Court, Ernakulam.
(ii) The transferor court while transmitting
records of the case to the transferee court shall fix
the date for appearance of parties in the transferee
court with due intimation to the counsel on both
sides.
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(iii) It is made clear that except when
physical presence of respondent in the transferee
court is necessary he can appear through counsel.
THOMAS P. JOSEPH, JUDGE.
vsv