IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 126 of 2009()
1. NEETHA JACOB, D/O.T.J.JACOB,
... Petitioner
Vs
1. BIJU R.,
... Respondent
For Petitioner :SRI.T.MADHU
For Respondent :SRI.SYAM J SAM
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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Tr.P.(C).NO.126 OF 2009 ()
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Dated this the 17th day of July, 2009
O R D E R
This petition is filed under Section 24 of the CPC.
Petitioner is the wife, and respondent the husband. Wife has
filed two petitions, O.P.Nos.333/2009 and 334/2009 before the
Family Court, Kottayam. The former for dissolution of
marriage and the latter for return of the ornaments and
valuables allegedly retained by the husband. The husband has
filed another petition for restitution of conjugal rights as
O.P.No.210/2009 before the Family Court, Kottarakkara. Wife
seeks transfer of the above petition from the Family Court,
Kottarakkara to the Family Court, Kottayam, where the two
petitions filed by her are pending.
2. Notice being given, the respondent has entered
appearance through counsel. The learned counsel for the
respondent opposed the application submitting that in 2006
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the respondent met with an accident and eversince he has to
suffer a lot of difficulties. He is unable to travel in view of the
physical ailments suffered. The mother of the husband is also
impleaded as one of the co-defendant along with him in
O.P.No.334/2009 filed by the wife and she is pretty old and
suffering from various ailments, according to the counsel. It is
also submitted that the application moved by the husband was
earlier in point of time, and so much so, the request for
transfer may not be entertained. On the other hand, the
learned counsel for the petitioner submitted that the wife is
attending to the needs of a child aged four years born out of
the wedlock and it is practically impossible for her to attend to
the Family Court at Kottarakkara. She has filed a petition for
maintenance for herself and the child is also highlighted to
contend that she has no means even for her sustenance in life.
Having regard to the submissions made and taking note of the
facts and circumstances presented, I find the interest of the
minor child is to be given predominance in considering the
question of transfer of the matrimonial proceedings pending
before different courts. The child is admittedly under the care
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and custody of the mother. Naturally the separation of the
spouses might have had its impact on the child even at his
infancy. Depriving him of the care of the mother driving her
to attend to a family court at a far place to defend the case
launched by her husband would have distress consequences
on the growth of the child. Further more, the grievance
canvassed by the wife that she has no means, and therefore,
she had been compelled to file a claim for maintenance cannot
also be lost sight of. If the husband is having physical
ailments, he can bring it to the notice of the Family Court
Judge and seek for his personal exemption, otherwise than
when his presence is absolutely required for an effective
adjudication of the disputes raised in the petition. So far as
the mother of the respondent is concerned, she is impleaded
as a defendant only in a civil suit and normally her presence
may not be required before the court. So much so, taking
note of the facts and circumstances involved, I find that the
transfer of O.P.No.210/2009 on the file of the Family Court,
Kottarakkara to the Family Court, Kottayam, where the other
two petitions are pending is essential to advance the ends of
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justice and it is ordered accordingly. The Judge, Family Court,
Kottarakkara shall transmit the records of the above case to
the transferee court without delay.
S.S.SATHEESACHANDRAN
JUDGE
prp