Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI THURSDAY, THE 17TH DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 TR.P(C) NO. 115 OF 2020 AGAINST THE ORDER/JUDGMENT IN OP 778/2017 OF FAMILY COURT, MUVATTUPUZHA PETITIONER/S: SHINE XAVIOUR AGED 34 YEARS D/O XAVIOR, KAITHARATH HOUSE, KOMBATHUKADAVU DESOM, KOMBATHUKADAVU P.O.MUKUNDAPURAM TALUK, THRISSUR DISTRICT, REP BY POWER OF ATTORNEY HOLDER XAVIOUR, AGED 71, S/O DEVASSY, KAITHARATH HOUSE, KOMABTHUKADAVU DESOM, KOMBATHUKADAVU P.O.MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV N.L.BITTO RESPONDENT/S: ULLAS AGED 40 YEARS S/O JOSEPH, PANDIMATTOM HOUSE, NEDUNGAPRA POST, VENGOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT-683 545. BY ADV SRI.P.M.SANEER THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
ORDER
This is a Transfer Petition filed by the wife through the power attorney holder, aged 71 years to transfer OP No.778 of 2017 pending before the Family Court, Muvattupuzha to the Family Court, Irinjalakkuda.
2. The case of the petitioner is that she is permanently residing at Kombathukadavu within the jurisdiction of the Family court, Irinjalakkuda. O.P No.778 of 2017 is filed for
restitution of conjugal rights. It is submitted that the Family Court, Muvattupuzha is around 80 kms from the residence of the petitioner and it is difficult for her to travel all the way to appear before the Family Court, Muvattupuzha. She also states that there is threat to the life of the petitioner. Admittedly, the petitioner is working at Australia and the respondent is in Kuwait. To conduct the case before the Family Court, -3- Irinjalakkuda is convenient for her, as the same is near to her residence.
3. The respondent had filed a counter affidavit, in which
he has stated that the Transfer Petition is filed without bona fides and only to protract the matter. The O.P was posted for evidence and the respondent was present on the court on 17.02.2020 and only at that fag end the petitioner filed this Transfer Petition to protract the matter. It is also contended that the petitioner is not having any permanent residence at the address shown in the Transfer Petition. Her parents are permanently residing in Pune, Mumbai for the last 30 years. The respondent further submits that since nobody was residing in the address shown in the Petition, he was constrained to take paper publication and through E-mail for effecting service of process in the case pending before the Family Court, Muvattupuzha. He prays that since the parties are residing outside India, it is convenient for
-4- both the parties if the same is transferred to the Family Court, Ernakulam.
4. The petitioner is working in Australia and the respondent is in Kuwait. O.P No.778 of 2017 is pending before the Family Court Muvattupuzha, according to the petitioner, Family Court, Irinjalakkuda is near to the residence of the petitioner and she is represented by the power of attorney holder, aged 71 years. The respondent is a resident of Kunnathunade Taluk, Ernakulam.
5. On going through the averments in the Transfer
Petition as well the grounds raised, I am of the opinion that taking into consideration the convenience of both the parties it is appropriate that the case can be transferred to Family Court, Irinjalakuda, as the same is convenient for both the parties. Moreover, as stated by the Apex Court in Sumita Singh v. Kumar Sanjay and another (AIR 2002 (SC) 396) & Arti Rani LR's., Pinki
-5- Devi and Another V. Darmendra Kumar Gupta (2008 (9) SCC 353), wherein the Apex Court has held that, while considering the request of transfer in matrimonial proceedings, convenience of the wife has to be given priority to the extent possible. In the result, the Transfer Petition is allowed. OP No.778
of 2017 pending before the Family Court, Muvattupuzha is withdrawn and transferred to the Family Court, Irinjalakkuda. The records shall be transmitted by the Family Court, Muvattupuzha to the Family Court, Irinjalakkuda immediately. On receipt of the records, the Family Court, Irinjalakkuda shall issue notice to the parties and dispose of the case in accordance with law. The counsel appearing for the parties shall appear before the Family Court, Irinjalakkuda on 04.03.2022.
Transfer Petition is allowed. Sd/- BASANT BALAJI JUDGE JS -6- APPENDIX OF TR.P(C) 115/2020 PETITIONER'S ANNEXURES ANNEXURE 1 A TRUE COPY OF THE OP 778 OF 2017 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, MUVATTUPUZHA DATED 21.12.2017 ANNEXURE 2 A TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER DATED 22.2.2018