High Court Kerala High Court

Merly @ Thressiamma vs Saji.K.Joseph @ Joseph on 30 June, 2009

Kerala High Court
Merly @ Thressiamma vs Saji.K.Joseph @ Joseph on 30 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Tr.P(C).No. 84 of 2009()


1. MERLY @ THRESSIAMMA, KOLLAMPARAMBIL
                      ...  Petitioner

                        Vs



1. SAJI.K.JOSEPH @ JOSEPH, AGED 33 YEARS
                       ...       Respondent

                For Petitioner  :SRI.A.K.HARIDAS

                For Respondent  :SRI.T.J.MICHAEL

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :30/06/2009

 O R D E R
                   S.S.SATHEESACHANDRAN, J.
                   -----------------------------------
                   Tr.P.C.Nos.84 & 139 of 2009
                    ---------------------------------
              Dated this the 30th day of June, 2009

                               O R D E R

The transfer petition 84/2009 is filed by the wife and the

other petition 139/2009, by the husband. The wife seeks

transfer of O.P.No.27/2007 on the file of the Family Court,

Thodupuzha, a proceeding initiated by the husband claiming

damages. She has also sought for in the same petition transfer

of the petition filed by her for setting aside the ex-parte decree

passed in O.P.13/2006 that too on the file of the Family Court,

Thodupuzha by which the husband obtained a decree of divorce.

She is residing in Ettumanoor and it is highly inconvenient for her

to attend the case at Thodupuzha court, which is situate nearly

75 km away from her residence, is one of the grounds canvassed

for transfer. She has a further case that she has to look after her

aged mother and there is none to assist her to prosecute the

cases. She has also filed two cases against the husband and both

are pending before the Family Court, Ettumanoor. The cases are

M.C.No.70/2009, a proceeding under Section 125 CPC seeking

maintenance from the husband alleging that he has neglected to

Tr.P.C.Nos.84 & 139 of 2009

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maintain her and O.P.234/2009 for restitution of conjugal rights.

After receipt of notice in the above petition, as a sequel thereto,

the husband has filed the other transfer petition seeking transfer

of the cases filed by the wife as M.C.No.170/2009 and

O.P.234/2009 to the Family court, Thodupuzha, contending no

inconvenience will be caused to the wife by such transfer.

2. I heard the counsel on both sides.

3. Having regard to the submissions made and also the

facts and circumstances presented, I find that the proceedings

taken by the wife for setting aside the ex-parte decree passed in

O.P.No.13/2006 which are now pending before the Family court,

Thodupuzha cannot be transferred to any other court as that

court will be the most competent court to determine whether she

has sufficient cause for non-appearance on the hearing of that

O.P. However, if her petition is allowed, it is open to her to seek

for transfer of that case also to the Family Court, Ettumanoor.

Serious allegations imputing chastity of the wife are narrated in

the counter filed by the husband opposing the application for

Tr.P.C.Nos.84 & 139 of 2009

3

transfer, of which reference was made by his counsel as a

circumstance dis-entitling the wife from seeking the transfer as

prayed for in her petition. In considering the question of

transfer, comparative hardship of the parties is the governing

factor, and the merit of the case whatever be the nature of the

allegations raised by the parties in the matrimonial dispute has to

be adjudicated by the court after affording opportunity to both

sides to lead evidence. From the facts presented, it appears, the

wife who is having her permanent abode at Ettumanoor, at

present is looking after her old mother. Other than her sister,

who is stated to be accompanying her whenever cases are posted

in the Thodupuzha court, she has none to seek assistance in her

case, I do not find any reason to doubt the veracity of the case

so presented by the wife. Such being the position, the interest

of justice demand the transfer of O.P.No.27/2007, the suit filed

by the husband claiming damages from the wife to the Family

Court, Ettumanoor where the other two proceedings

M.C.No.70/2009 and O.P.No.234/2009 filed by the wife are

pending for adjudication. Ordered accordingly.

Tr.P.C.Nos.84 & 139 of 2009

4

Send a copy of the order to both the Family Courts

forthwith, and the Family Court, Thodupuzha is directed to

transmit the records of O.P.No.27/2007 to the Family Court,

Ettumanoor without delay.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-