Allowed

S.Jancy v. S.Ratheesh

Kerala HC24 Nov 2016Tr.P(C)/559/2016

Case brief

AI extract

What is this about?

In this transfer petition, the Kerala High Court considered an application to shift a divorce case from Thiruvananthapuram to Attingal Family Court. The petitioner, a non-earning wife residing far away, cited hardship in traveling to Thiruvananthapuram while the remote respondent cited his power-of-attorney holder's health. The Court emphasized the hardship to the wife and the non-essential presen

What did the court decide?

The application is allowed; O.P.1637/2016 is withdrawn from Thiruvananthapuram and transferred to Family Court, Attingal for disposal.

S.Jancy Vs S.Ratheesh — Matrimonial and Divorce | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938

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Tr.P(C).No. 559 of 2016

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OP 1637/2016 OF FAMILY COURT, THIRUVANANTHAPURAM

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---------------

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PETITIONER/RESPONDENT:

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S.JANCY, D/O SATHYABABU, AGED 26 YEARS, SABARI, NALUMMUKKU, MANAMBUR, THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.LATHEESH SEBASTIAN

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RESPONDENT/PETITIONER:

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S.RATHEESH, S/O SURENDRAN, AGED 32 YEARS, S.R. BHAVAN, KULATHOOR, KAZHAKUTTOM, THIRUVANANTHAPURAM 695 001.

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BY ADV. SMT.K.KUSUMAM SRI.K.KALESH

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THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.V.

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TPC NO 559 OF 2016:

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APPENDIX

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PETITIONERS ANNEXURES:

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ANNEXURE A1: COPY OF THE ORIGINAL PETITION IN OP NO 1637/2016 ON THE FILE OF THE FAMILY COURT,THIRUVANANTHAPURAM. RESPONDENTS ANNEXURES:

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ANNEXURE R1: COPY OF MEDICAL RECORDS FROM LORDS HOSPITAL,THIRUVANANTHAPURAM,SHOWING THAT THE POWER OF ATTORNEY HOLDER OF THE RESPONDENT HAD UNDERGONE SURGERY FOR PROSTRATE DISEASE.(6IN NUMBERS).

/TRUE COPY/

P.A.TO JUDGE

K.V.

K.RAMAKRISHNAN, J.

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Tr.P. (C) No.559 of 2016

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Dated this the 24^th day of November, 2016

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ORDER

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This petition has been filed by the petitioner seeking transfer of O.P.1637/2016 pending before the Family Court, Thiruvananthapuram

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to Family Court, Attingal under section 24 of the Code of Civil Procedure.

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It is alleged in the petition that the marriage between the petitioner and the respondent was solemnised on 5.5.2010 at Jugee Auditorium, Kallambalam and a child was born to them in that wedlock. For sometime, they lived together. Thereafter the relationship strained and now they are residing separately. The petitioner is now residing along with her parents and the child at Kallambalam. She is without any employment. The respondent is residing in Kazhakkoottam in Thiruvananthapuram District and the petitioner has to travel long distance to go to Thiruvananthapuram to conduct the case. The respondent filed O.P.1637/2015 before the Family Court, Thiruvananthapuram for dissolution of marriage. She is finding it difficult to go to Thiruvananthapuram to conduct the case. The respondent is residing at Kazhakkoottam and he can come to Attingal, if the case is transferred to Attingal Family Court. So considering the circumstances, the petitioner prays the case will have

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Tr.P. (C) No.559 of 2016

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to be transferred to Family Court, Attingal.

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Respondent filed a counter affidavit through his power of attorney holder stating that the petition is not maintainable and the reasons stated are not correct. His father is conducting the case and he cannot travel long distance due to his physical anomalies and he requires the help of another person. He produced Ext.R1 to prove his health condition. He will have to board at least two buses to reach Attingal. He had undergone prostrate operation and he cannot be able to travel. If the case is transferred he will be put to serious hardships. The reasons stated are not sufficient for transferring the case. He prays for dismissal of the application

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Heard Sri.Latheesh Sebastian, counsel appearing for the petitioner and Smt.K.Kusumam, counsel appearing for the respondent.

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The counsel for the petitioner submitted that, the petitioner is without any employment and she is residing in Mannoor at Kallambalam in Chirayinkizhu Taluk. The respondent is residing at the place called Attipra in Thiruvananthapuram district and Thiruvananthapuram is 18 kilometers from there and from Attipra to Attingal also only 18 kilometers. Petitioner has to travel more than 45 kilometers to reach Thiruvananthapuram, whereas Family Court, Attingal is nearer to him. So he prays for allowing the application.

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Tr.P. (C) No.559 of 2016

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On the other hand, the counsel for the respondent submitted that, the respondent is working abroad and he is represented by his power of attorney holder, who is the father aged 64 years and suffering from several diseases and it is difficult for him to travel.

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It is an admitted fact that the petitioner and respondent are wife and husband and their marriage was solemnised in the year 2010 and a female child was born to them in that wedlock. Thereafter the relationship strained and she is now residing with her parents at Kallambalam and she is without any employment. The respondent/ husband filed O.P.1637/2016 before the Family Court, Thiruvananthapuram for dissolution of the marriage. According to the petitioner she is finding it difficult to go to Thiruvananthapuram to conduct the case and Attingal Family Court, is nearer to her. Further the respondent is residing at Attipra which is having a distance of 18 kilometers from Attingal. According to the respondent Attipra which is 25 kilometers from Attingal. But the petitioner has to travel more than 45 kilometers to reach Thiruvananthapuram. But according to the counsel for the respondent that he is residing at Kulathoor and he has to travel less than 15 kilometers to reach Thiruvananthapuram and he had board two buses to go to Attingal which is about 20-25 kilometers.

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Tr.P. (C) No.559 of 2016

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He is also suffering from some illness evidenced by Ext.R1. It is true that Ext.R1 shows that the power of attorney of the respondent had undergone a surgery for prostrate, but that alone is not sufficient to come to the conclusion that he may not be able to travel. His only grievance was that, he will get medical facilities at Thiruvananthapuram, if any medical facility is required. It may be mentioned here that the petitioner is a lady without employment and she is depending on her parents and she is living with the child also. Asking such a lady to go to Thiruvananthapuram to conduct the case will cause unnecessary hardship to her. The respondent is working abroad. The respondent is being represented by his power of attorney according to the respondent. He can very well be represented through counsel before the Attingal court. So under such circumstances, the place of residence of the wife will have to be considered while considering the question of transfer of cases from one court to another court. The presence of the power of attorney holder is not always required for the purpose of conduct of the case. Being a divorce case, for the purpose of giving evidence the respondent has to come and give evidence to prove the allegations in the petition and to get the relief claimed in the petition. So under such circumstances, this court feels that it is necessary in the interest of justice to transfer

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Tr.P. (C) No.559 of 2016

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O.P.1637/2016 pending before the Family Court, Thiruvananthapuram to Family Court, Attingal.

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So the application is allowed and O.P.1637/2016 pending before the Family Court, Thiruvananthapuram is withdrawn and transferred to Family Court, Attingal for disposal. Both the counsel submitted that, if a date is fixed for appearance, they will appear before that court. So parties are directed to appear before Family Court, Attingal on 08.01.2017. The parties can appear either in person or through counsel or authorised agent. Their presence need be insisted only if the court requires for their presence for the purpose of conducting mediation and counselling and for the purpose of trial if it is required. The Family Court, Thiruvananthapuram is directed to transmit the records to Family Court, Attignal immediately.

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Registry is directed to communicate this order to both the courts immediately.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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S.Jancy v. S.Ratheesh

Case brief

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S.Jancy v. S.Ratheesh

Case brief

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