Swathi Prabhakar vs Rahul P.S
2021 Latest Caselaw 14662 Ker

  Tr.PC.132/21                       1




                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                    THE HONOURABLE MR.JUSTICE V.G.ARUN
    WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                         TR.P(C) NO. 132 OF 2021
        AGAINST THE ORDER/JUDGMENT IN OP 89/2021 OF FAMILY
                        COURT,KOZHIKODE, KOZHIKODE
PETITIONER/S:

            SWATHI PRABHAKAR
            AGED 27 YEARS
            D/O.E.PRABHAKARAN, 56/1216, GAYATHRI (H), VNR46,
            VIDYANAGAR, KADAVANTHRA P.O., ERNAKULAM-682020.

            BY ADVS.
            RENJITH B.MARAR
            SMT.LAKSHMI.N.KAIMAL
            SHRI.ARUN POOMULLI
            SMT.SURABHI SANTHOSH
            SHRI.BIJU VIGNESWAR
            SHRI.MEERA M.



RESPONDENT/S:

            RAHUL P.S.
            AGED 34 YEARS
            S/O.SOUMIAN NAIR, SOUPARNIKA(H), CHERUVATTA, PARAMBIL
            BAZAR P.O., KOZHIKODE, PIN-673012, NOW RESIDING AT 464
            NOTTINGHAM CRESCENT, OSHAWA, ON, L1K2V6, CANADA.

            BY ADVS.
            SRI.SAIJO HASSAN
            SRI.BENOJ C AUGUSTIN
            SRI.RAFEEK. V.K.
            SMT.P.PARVATHY
            SMT.S.SETHU LEKSHMI
            SMT.AATHIRA SUNNY
            SHRI.MANAS P HAMEED
   Tr.PC.132/21                   2

            SHRI.ELDHO.N.MONCY




     THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
    Tr.PC.132/21                          3




                                 V.G.ARUN, J.
                  -----------------------------------------------
                            Tr.P(C). 132 of 2021
                  -----------------------------------------------
                  Dated this the 14th day of July, 2021

                                   ORDER

The marital discord among the spouses has resulted in the

respondent/husband filing O.P.No.89 of 2021 before the Family Court,

Kozhikode for dissolution of marriage. The petitioner/wife, who is a

permanent resident of Ernakulam, seeks transfer of the original petition

to the Family Court, Ernakulam. Various contentions have been raised

by the learned Counsel for the parties, including the contention that the

original petition is filed to circumvent the legal proceedings initiated by

the wife at Ontario in Canada, where the parties had last resided

together. It is submitted that the petitioner is presently unemployed and

has to look after her aged parents also. As such, she does not have the

wherewithal to contest the case at Kozhikode.

2. Learned counsel for the respondent refuted the factual

allegations and contended that the original petition is pending before

the jurisdictional court, the marriage having been solemnised at

Kozhikode. It is submitted that the respondent is contesting the case

through his power-of-attorney holder who is a senior citizen and

therefore, transfer of the case to suit the convenience of the wife will

cause undue prejudice to him.

3. Indisputably, the petitioner is residing in her parental house in

Ernakulam and the respondent is abroad and is contesting the case

through his power-of-attorney holder. In such circumstances, the

transfer petition is liable to be allowed in the light of the dictum laid

down by the Honourable Supreme Court in Sumita Singh v Kumar

Sanjay and another [(2001) 10 SCC 41 and Rajani Kishore Pardesh

v Kishore Babulal Pardesh [(2005) 1 SCC 237] that, in transfer

petitions arising from matrimonial cases, convenience of the wife should

be preferred over that of the husband.

In the result, the transfer petition is allowed. O.P.No.89 of 2021 is

transferred from Family Court, Kozhikode to the Family Court,

Ernakulam. The transferee court shall not insist on the personal

presence of the parties, unless absolutely necessary.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX OF TR.P(C) 132/2021

PETITIONER ANNEXURE

ANNEXURE A1 A TRUE COPY OF THE LEGAL NOTICE SENT BY THE COUNSEL FOR THE PETITIONER TO THE RESPONDENT IN CANADA DATED 31.08.2020.

ANNEXURE A2 A TRUE COPY OF THE LEGAL NOTICE DATED 07.11.2020 SEND BY THE RESPONDENT THROUGH HIS LAWYER IN KERALA TO THE PETITIONER.

ANNEXURE A3 A TRUE COPY OF THE COURT FILE PRABHAKAR V.SOUMIAN COURT FILED NO.FC-20-1496 DATED 24.11.2020 FILED BEFORE SUPERIOR COURT OF JUSTICE, ONTARIO.

ANNEXURE A4 A TRUE COPY OF THE NOTICE VIA E-MAIL SENT BY THE PETITIONER'S COUNSEL DATED 17.01.2021 THROUGH MINISTRY OF LAW AND JUSTICE, DEPARTMENT OF LEGAL AFFAIRS, GOVERNMENT OF INDIA IN COMPLIANCE WITH THE HAGUE CONVENTION NO.3 TO RESPONDENT NO.4.

ANNEXURE A5 A TRUE COPY OF THE EMAIL COMMUNICATIONS DATED 18.01.2021 BETWEEN THE PETITIONER'S LAWYER AND THE RESPONDENT.

ANNEXURE A6 A TRUE COPY OF THE PETITION FOR DIVORCE NUMBERED AS O.P.89/2021 DATED 19.01.2021 BEFORE HON'BLE FAMILY COURT, KOZHIKODE.

ANNEXURE A7 A TRUE COPY OF THE NOTICE DATED 25.01.2021 IN O.P.89/2021 ISSUED BY FAMILY COURT, KOZHIKODE SERVED UPON THE PETITIONER.

ANNEXURE A8 A TRUE COPY OF THE SWORN AFFIDAVIT OF SERVICE DATED 10.02.2021.