IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 215 of 2009()
1. DR.S.NAJEEB, AGED 45 YEARS,
... Petitioner
Vs
1. SOPHIA, AGED 33 YEARS,
... Respondent
2. FASIL NAJEEB, AGED 9 YEARS,
3. FIROZ NAJEEB, AGED 9 YEARS,
For Petitioner :SRI.S.D.ASOKAN
For Respondent :SRI.ALEX N.MATHEW (KOLLAM)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :24/08/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Tr.P.(C) Nos.215 & 216 of 2009
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Dated: 24th August, 2009
ORDER
These two petitions are filed under Section 24 of the C.P.C.
Petitioner is the husband and the respondent, the wife. Wife has filed
two petitions, one claiming maintenance for herself and the two
children as M.C.No.141 of 2009 and the other for return of valuables
and gold ornaments as O.P.No.628 of 2009, both before the Family
Court, Kollam. Transfer of the petitions is sought by the husband
presenting a case that he has commenced a proceeding as O.P.(GW)
No.494 of 2009 for getting the custody of the two children before the
Family Court, Nedumangad. It is his case that transfer of the cases
filed by the wife to the Family Court, Nedumangad will not cause the
wife any inconvenience. He has a further case that he suffers from
hypertension and so much so, require continuous medical treatment.
He has also expressed apprehension of threat to life from the hands
of the powerful and influential relatives of the wife, as another ground
justifying for transfer of the petitions filed by the wife to the Family
Court, Nedumangad.
2. Notice on the petitions given, the wife has entered
appearance. I heard the counsel on both sides. At the time of
Tr.P.C.215 & 216/09 – 2 –
hearing, learned counsel for the petitioner submitted that there was a
mistake in the petition with respect to O.P.(G.W.) filed by the
husband in stating that petition was pending at the time of filing of
the transfer petition. Actually that petition was disposed earlier as not
pressed, submits the counsel. However, learned counsel pressed into
service the other circumstances highlighted in the petitions
requesting for transfer of the two petitions filed by the wife from
Family Court, Kollam to the Family Court, Nedumangad. The husband
is prepared to meet the conveyance charges of the wife is the further
submission of the counsel to sustain the reliefs claim in these
petitions. On the other hand, learned counsel for the wife resisting
the application submitted that the wife has to lookafter two children
aged 9 and 7 years, both of them attending the schools. It is
contended by the counsel that the husband is residing at Mamam in
Attingal situate nearly 30 K.M. from Kollam. According to the learned
counsel, the distance between the Family Court, Nedumangad from
Mamam is 45 K.M. Learned counsel would further submit that there is
no basis for the apprehension raised by the husband as to the threat
from the relatives of the wife. If any transfer as desired by the
husband is ordered, it is submitted, it would cause severe hardship
Tr.P.C.215 & 216/09 – 3 –
and lot of inconvenience to the wife. In considering the question of
transfer in a matrimonial proceeding comparative hardship of the
parties has to be examined and in doing so, naturally the
inconvenience and difficulties likely to be faced by the wife may
require more sympathetic consideration. Admittedly, after the
separation of these spouses which is stated to be in 2006, i.e., three
years prior to the commencement of the proceedings between them,
the wife is maintaining the children having their custody. Both the
children are attending to schools at Kollam is not disputed. In a case
of this nature, the interests of the minor children also deserve to be
taken note of. For the time being, in view of the matrimonial disputes
between the spouses, the children are deprived of the care, love and
affection of their father. If the wife mother is compelled to go over to
Family Court, Nedumangad leaving the children unattended, then
naturally it will affect their well being apart from having psychological
impact as well. So, considering the interest of the minor children,
which has to be given paramount importance, I find the request for
transfer made by the husband cannot be entertained. He suffers from
some ailments and he apprehends threat from the relatives of the
wife cannot be given unmerited consideration especially in the
Tr.P.C.215 & 216/09 – 4 –
background that the wife has filed an application for maintenance
from the husband advancing a case that he has neglected to maintain
her and she has no sufficient means for sustainence in life. Whatever
be the merits of her claim, the fact that she has filed a petition for
maintenance against the husband and it is pending for consideration
cannot be ignored. Learned counsel for the respondent has a case
that a sum of Rs.2000/- per each children was sent in the previous
month, but it was refused to be accepted. Whatever that be, it is a
matter to be examined by the court where the maintenance claim is
pending. From the facts presented, it appears that the cases pending
between the parties are the proceedings initiated by the wife and
both cases are pending at Family Court, Kollam which is situate 30
K.M. away from the place of residence of the husband and the
transfer is requested to the Family Court, Nedumangad which is
situate 45 K.M. away from his place of residence. In the aforesaid
situation, I find no merit in the petitions. Both the petitions are
dismissed.
srd S.S. SATHEESACHANDRAN, JUDGE