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2013 DIGILAW 573 (MAD)

Antony Abinaya v. J. George Felix

2013-01-24

G.RAJASURIA

body2013
Judgment :- 1. This Transfer Civil Miscellaneous Petition has been filed to get transferred the case in I.D.O.P.No.46 of 2011 pending on the file of the I Additional District Court, Tirunelveli, to the file of the Family Court, Coimbatore. 2. Heard both sides. 3. A thumbnail sketch of the facts absolutely necessary for the disposal of this petition would run thus: The respondent namely George Felix filed I.D.O.P.No.46 of 2011 on the file of the learned I Additional District Judge, Tirunelveli, seeking restoration of conjugal rights. In the meanwhile, the wife of the respondent namely Antony Abinaya filed this petition seeking transfer of the said I.D.O.P.No.46 of 2011 to the file of the Family Court, Coimbatore. 4. The learned Counsel for the petitioner/wife would express the cri de coeur and heart burns of his client to the effect that already his client namely Antony Abinaya instituted the proceedings under the Domestic Violence Act and it is pending before the learned Judicial Magistrate No. VI, Coimbatore as against her husband and her in-laws; the petitioner is having a child aged about 3 years in her custody and it would not be possible for her to travel all along from Coimbatore to Tirunelveli to attend the Court proceedings before the learned I Additional District Judge, Tirunelveli in connection with I.D.O.P.No.46 of 2011 and as such, in the fitness of things, the case in I.D.O.P.No.46 of 2011 has to be transferred to the file of the Family Court, Coimbatore. 5. Per contra, the learned Counsel for the respondent/husband would oppose this petition on the main ground that the reasons found set out in the petition for transfer are not at all sound and tenable and the husbands as well as the wife are Sidda Doctors and so, she could travel from Coimbatore to Tirunelveli. 6. The point for consideration is as to whether for the reasons found set out in the petition filed by the petitioner/wife, the I.D.O.P.No.46 of 2011 pending on the file of the I Additional District Court, Tirunelveli, has to be transferred to the file of the Family Court, Coimbatore? The Point: 7. Trite, the proposition of law is that the convenience of the parties should be taken note of. The Point: 7. Trite, the proposition of law is that the convenience of the parties should be taken note of. Indubitably and indisputably, the proceedings under the Domestic Violence Act, is pending before the learned Judicial Magistrate No. VI, Coimbatore, as against the husband and it is also an admitted fact that the petitioner/wife is staying with her parents in Coimbatore and the child aged about 3 years is also in her custody. In such a case, transferring the case in I.D.O.P.No.46 of 2011 from the file of the I Additional District Court, Tirunelveli, to the file of the Family Court, Coimbatore, in the fitness of things would be the most appropriate measure rather than driving the petitioner/wife to travel from Coimbatore to Tirunelveli, to attend the proceedings for every hearing. 8. On the other hand, the respondent/husband being a male could afford to travel from Tirunelveli to Coimbatore and as such, the balance of convenience is in favor of the petitioner/wife and not in favor of the respondent/husband. 9. As such, I would like to order for transferring the case in I.D.O.P.No.46 of 2011 from the file of the I Additional District Court, Tirunelveli, to the file of the Family Court, Coimbatore, for disposal as per law. The point is answered accordingly. 10. On balance, this Transfer Civil Miscellaneous Petition is ordered as above. No costs. 11. The learned Counsel for the respondent/husband would make an extempore submission that repeated demands of the respondent/husband to the petitioner/wife, to come forward for mediation ended in a fiasco and the Court could pass suitable directions. It cannot be stated that the wife is having a right not to attend the mediation. It is the fundamental principle in matrimonial proceedings that before further proceeding with the enquiry, the Court should take all endeavors to see that the parties are mediated and counseled. If there is any failure on that front, then only, the enquiry should be proceeded with. As such, on such I.D.O.P.No.46 of 2011 being transferred to the file of the Family Court, Coimbatore, the Family Court shall strictly adhere to the rules and regulations concerning mediation and counseling and accordingly, the parties shall subject themselves to such a procedure.