High Court Kerala High Court

Raja Narayanan vs Priya Gopinathan on 6 August, 2007

Kerala High Court
Raja Narayanan vs Priya Gopinathan on 6 August, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Tr P(C) No. 54 of 2007()


1. RAJA NARAYANAN, AGED 39 YEARS,
                      ...  Petitioner

                        Vs



1. PRIYA GOPINATHAN, AGED 33 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.MOHAN JACOB GEORGE

                For Respondent  :SRI.PHILIP T.VARGHESE

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :06/08/2007

 O R D E R
                     M.N.KRISHNAN, J.
               -----------------------------
                Tr.P.C.Nos. 54 & 89 OF 2007
               -----------------------------
             Dated this the 6th August, 2007.

                         JUDGMENT

Tr.P.C.89/07 is filed by the wife for transfer of O.P

(HMA) 810/06 filed by the husband for divorce before the

Family Court, Kottayam at Ettumanoor. The other petition

54/07 is filed by the husband to transfer O.P.1681/06

pending before the Family Court at Ernakulam to the Family

Court, Kottayam at Ettumanoor. This is a case where both

the husband and wife have filed two applications for

divorce in two different courts. According to the wife she

is employed in Bangalore and it will be inconvenient for

her to attend the Family Court, Kottayam and therefore, it

must be transferred to Family Court at Ernakulam. The

husband would contend that the very filing of the second

divorce petition itself is mischievous and it is only to

harass him and as per Section 21A of the Hindu Marriage

Act, 1955 when petitions are filed for the same relief in

two different courts the procedure to be followed is to

transfer the case filed later to the other court where the

earlier case is pending and, therefore, it is submitted

that the case at Ernakulam be transferred to Kottayam. At

the outset I may like to state that Ernakulam is not the

permanent residence of the wife. It is submitted that she

Tr.P.C.Nos: 54 & 89/07 2

belongs to Pathanamthitta district and she is living at

Bangalore. Now the contention is if she wants to come by

train it will take her more time to travel to the Family

Court, Kottayam at Ettumanoor and, therefore, considering

her convenience the transfer should be effected. Learned

counsel for the husband would contend that Section 21A will

be clearly a bar for such prayer. The husband and wife

both have approached the courts for the same relief of

divorce. The husband had approached the court at the

earliest instance and Section 21A prescribes the procedure

how a later case filed for the same relief should be dealt

with. So, one has to respect the statutory obligation

unless there are such convincing inconvenience for the

other side. When a client comes for a case her or his real

presence is necessary only at times when conciliation talk

is going on and in case of its failure at the stage of

trial where parties have to be examined. It is the list

system that is followed in this state. When the matter is

listed the case will go on, on the basis of a day to day

trial system. So when the trial commences neither the

husband nor the wife can afford to leave the place on the

very same day. Similarly for preparation of the case also

it may not be possible for a party to arrive exactly in

time to instruct the lawyer. The running time between

Ernakulam and Kottayam by train at the most is 60 to 90

Tr.P.C.Nos: 54 & 89/07 3

mts. The grounds suggested are not so serious which

requires a consideration beyond the statutory obligation

cast upon the court under Section 21A of the Hindu Marriage

Act. Therefore, I find as contended by the counsel for the

husband that the way out in this case is to transfer

O.P.1681/06 pending before the Family Court at Ernakulam to

the Family Court, Kottayam at Ettumanoor for joint trial

and disposal. But at the same time I direct the Family

Court, Kottayam at Etttumanoor not to insist for the

presence of the wife unless it is so required because the

parties arrival from Bangalore to Kottayam at Ettumanoor on

formal posting days will be very difficult and almost an

impossible task. So this aspect be borne in mind when an

application is filed for exempting her from personal

appearance before the court. With these observations

O.P.1681/06 pending before the Family Court, Ernakulam is

transferred to the Family Court,Kottayam at Ettumanoor to

be tried along with O.P.810/06 pending before the said

court. Both the transfer petitions are disposed of

accordingly.

M.N.KRISHNAN
Judge
jj