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2008 DIGILAW 497 (KER)

Sony Abraham v. Bobby Bosco

2008-08-13

M.SASIDHARAN NAMBIAR

body2008
ORDER M. Sasidharan Nambiar, J. 1. This petition is filed under S.23 of Code of Civil Procedure to transfer OP No. 407 of 2008, on the file of Family Court, Kottayam, to Family Court, Pune. OP No. 407 of 2008 is filed by the respondent for divorce. Petitioner is the wife. The case of the petitioner is that she is residing and working at Pune and it is not possible for her to come to Kottayam and contest the case, and, therefore, Original Petition pending before Family Court, Kottayam, is to be transferred to Family Court, Pune. It is also contended that respondent is also working at Pune. 2. The learned counsel appearing for the respondent opposed the prayer for transfer. It was submitted that respondent is now not working at Pune and though head office of the company in which respondent is employed is at Pune, he is not working at Pune, and, therefore, it is not at all convenient for the respondent to get the Original petition transferred to Pune. The learned counsel also submitted that notices are being received by the respondent at his address at Kottayam and not at Pune. 3. S.23 of Code of Civil Procedure provides for the Court which an application for transfer, as provided under S.22, is to be filed. S.22 provides that where, a suit may be instituted in any one or two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties, shall determine in which of the several Courts having jurisdiction the suit shall proceed. 4. Sub-section (1) of S.23 of Code of Civil Procedure (CPC, 1908) provides that where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under S.22 shall be made to the Appellate Court. Sub-section (3) of S.23 provides that where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought. 5. Sub-section (3) of S.23 provides that where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought. 5. OP No. 407 of 2008 is filed by the respondent before Family Court, Kottayam, a Court subordinate to this Court. Petitioner and the respondent were admittedly residing at Pune, as husband and wife, within the jurisdiction of Family Court, Pune. In such circumstances, Family Court, Pune, had definitely jurisdiction to try the Original Petition filed by the respondent for dissolution of marriage. When petitioner wife is employed and is residing at Pune, she is definitely entitled to apply for transfer as provided under S.22 of Code of Civil Procedure, and that application is to be filed before this Court, as provided under sub-section 3 of S.23, as Family Court in which Original Petition is filed by respondent is subordinate to this Court. Though learned counsel appearing for the respondent argued that the respondent is now working at Pune, and it is not convenient for him to get the case transferred to Pune, when the convenience of both the parties is to be balanced, preference necessarily is to be given to the inconvenience and difficulties of the wife. If that be so, petitioner is entitled to get the Original Petition filed by the respondent for divorce transferred to Family Court, Pune. Transfer petition is allowed. Original Petition No. 407 of 2008 on the file of Family Court, Kottayam, is withdrawn and transferred to Family Court, Pune.