Kerala High Court
Raichal John vs Francis Ninan on 13 March, 1995
Equivalent citations: II(1995)DMC225, 1996 A I H C 1250, (1995) 3 CURCC 19, (1995) 2 DMC 225, (1995) 1 KER LJ 548, (1995) 1 KER LT 687, (1995) 2 CIVLJ 850
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
JUDGMENT P.K. Balasubramanyan, J.
1. This petition is for transfer of an Original Petition for divorce pending before the Family Court, Quilon from that Court to the District Court, Pathanamthitta on the ground that the petitioner-wife resides within the jurisdiction of the District Court, Pathanamthitta and it will be more convenient to her if the proceedings are tried in the District Court, Pathanamthitta. Though served with notice, the respondents have not appeared in this Civil Miscellaneous Case.
2. The petition for divorce was filed by the husband, the first respondent initially in the Family Court, Trivandrum. There is no case for the petitioner-wife that the Family Court, Trivandrum did not have the jurisdiction to try the cause. The allegation in the petition was that the parties were last residing together in the matrimonial home at Quilon, then within the jurisdiction of Family Court, Trivandrum. On the formation of the Family Court at Quilon, the petitioner for divorce was transferred to that Family Court. There is no case for the petitioner that the Family Court at Quilon has no jurisdiction to try the cause.
3. Family Courts are constituted by the Family Courts Act with a view to make a different approach to the resolution of matrimonial and allied domestic problems. Elaborate machinery has been provided by that Act for counselling, for making attempts to bring the parties together and for deciding the dispute between the spouses. The expertise introduced by the Family Courts Act and the Rules would not be available in an ordinary Civil Court. In fact, the Law Commission in its 59th report had stressed that in dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings. It was with this also in view that the Family Courts Act was enacted. In such a context, the mere fact that one of the parties to the dispute is living within the jurisdiction of a District Court, which may be nearer to his or her residence or that the District Court might also have jurisdiction to try the cause, is no ground to deprive the parties of the benefit of the machinery provided by the Family Courts Act to solve or reconcile the dispute or the difference between the spouses.
4. I am, therefore, of the view that the power of transfer which may inhere in this Court under Section 24 of the Code of Civil Procedure, should not be exercised so as to thwart the object sought to be achieved by the Family Courts Act and the resolution of disputes between the spouses through the machinery provided by that Act unless there are compelling and unavoidable circumstances. In that view, I find that the transfer prayed for by the petitioner is not liable to be granted.
5. In exercising the powers of transfer this Court must be conscious of the object with which the Family Courts have been established. This Court is not entitled to deal with such applications for transfer in a routine manner as if the so-called convenience of one of the parties is the relevant consideration. The so called convenience of one of the parties is not a consideration sufficient to off set the advantages that arise from the cause being tried in a Family Court established under the Family Courts Act. This approach is warranted in view of the legislative policy clearly discernible from the Family Courts Act. In that view, I find no reason for transferring the proceedings from the file of the Family Court, Quilon to the District Court, Pathanamthitta as prayed for by the petitioner. I dismiss this petition.