SUBAIDA BEEVI Vs. DR. NIFINA.N & ORS.

JUDGEMENT

(1.) The main prayer in this Transfer Petition (Civil) is as follows:

(2.) Heard Sri.Basant Balaji, learned counsel appearing for the petitioner, Sri.C.R.Jayakumar, learned counsel appearing for R-1 and Smt.S.Nishi, learned counsel appearing for R-2 and R-3.

(3.) The 1st respondent herein had filed O.P.No.1377/2016 before the Family Court, Kottarakkara, seeking recovery of gold ornaments and money and the petitioner herein and respondents 2 and 3 herein have arrayed as respondents in that O.P. The petitioner would contend that she is aged 55 years and she finds it difficult to travel all the way from her residential place at Thiruvananthapuram to Kottarakkara to attend to the family court proceedings in respect of the litigative matters in the Family Court, Kottarakkara. It is on this premise that the petitioner would strongly urge that O.P.No.1377/2016 may be ordered to the transferred from Family Court, Kottarakkara to Family Court, Thiruvananthapuram. It is also pointed out by the petitioner that the Maintenance Case filed by the 1st respondent is already pending before the Magistrate Court at Neyyattinkara and further that the 1st respondent has also initiated criminal complaint proceedings for alleged offence under Section 498A of the IPC, which is pending before the Magistrate Court at Neyyattinkara, Thiruvananthapuram District. Further it is pointed out by the 1st respondent that the Maintenance Case has already dismissed as the 1st respondent's husband is no more. The counsel for the 1st respondent would strongly urge that his party would be made to suffer from hardship and difficulties if the plea for transfer is allowed and further that the 1st respondent is a Ayurveda Physician, who is prosecuting her Post Graduate studies at Malappuram and that the inconvenience and hardship faced by the 1st respondent would be more compared to the possible inconvenience that may be faced by the petitioner herein. From the tone and tenor of the pleadings in the Transfer Petition it could be learnt that the relationship between the parties are quite strained. In the instant case both the rival claimants are women and therefore this Court will have to do a careful balancing act in the adjudication of the rival pleas in this Transfer Petition. The main hardship alleged by the petitioner is that she is aged 55 years and that she is suffering from various ailments. It is also brought to notice that she has retired from Government service very recently. It is alleged that the distance from her residence at Thiruvananthapuram District to Kottarakkara is 100 kilometers. Considering the rival pleas, this Court is of the view that if the plea for transfer is allowed, it will cause more hardship to the 1st respondent. Accordingly, this Court is of the considered opinion that the plea for transfer cannot be acceded to. However, necessary orders could be passed in order to ensure justice is rendered to the petitioner as well. In view of the ailments alleged by the petitioner, it is also ordered in the interest of justice that the petitioner will be at liberty to file appropriate application for grant of exemption from personal appearance and the said application may be considered favourably by the Family Court, Kottarakkara provided that the petitioner is represented by an Advocate. In case the petitioner wants to adduce evidence in the matter she could be given liberty to file her proof affidavit in lieu of chief examination and she will have to appear for the cross-examination and reexamination. It is also made clear that if the petitioner has a case that she cannot travel all the way from Thiruvananthapuram to Kottarakkara, for giving evidence, it will be open to the petitioner to produce medical certificates showing her ailments and pray before the Family Court for recording her evidence through Advocate Commissioner in which case the Family Court may consider such plea taking into account the facts and circumstances projected in the affidavit as well as the medical certificate that may be produced in that regard. Sri.C.R.Jayakumar, learned counsel for R-1 has fairly submitted on the basis of instructions from his party that in the event of the petitioner filing any application for personal exemption or for recording her evidence through Advocate Commissioner, then the 1st respondent would not oppose such pleas for the sake of opposition and it is for the Family Court, to take an independent decision in the matter based on the materials made available by the petitioner. However, Sri.C.R.Jayakumar, learned counsel for the 1st respondent, would submit that this Court may in the interest of justice pass necessary orders so as to ensure the early disposal of O.P.No.1377/2016 by the Family Court, Kottarakkara without much delay. Having regard to the facts and circumstances, it is ordered in the interest of justice that Family Court, Kottarakkara will take all reasonable endeavours possible under the circumstances to ensure that O.P.No.1377/2016 is disposed of without much delay, preferably within one year from the date of receipt of a copy of of this order. With these observations and directions, the Transfer Petition (Civil) will stand dismissed.