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