Kerala High Court: In an intra-court transfer appeal arising from an order allowing transfer of a matrimonial original petition from one Family Court to another at the instance of the wife, the question was whether, at an advanced stage of trial, such transfer could be justified on the ground that the wife practices at the Court where the case was pending. The Division Bench of Sathish Ninan and P. Krishna Kumar*, JJ., set aside the transfer order, and held that transferring matrimonial case to another court at such an advance trial stage was unsustainable, highly unjustified and improper, particularly in view of the mediated settlement wherein both parties had agreed to cooperate for an expeditious disposal before the same court.
Background
The husband instituted a matrimonial original petition seeking annulment of the marriage solemnised on 11 July 2008 in accordance with Hindu religious rites and ceremonies. The wife raised a counterclaim for restitution of conjugal rights and moved an application to open a bank locker and hand over gold ornaments to her, which application was dismissed by the Family Court. When this Court upheld the Family Court’s order, a fresh application was filed with a schedule of ornaments and wedding photographs, which was again dismissed.
During pendency of proceedings challenging the Family Court’s order, the matter was referred to mediation, and a settlement agreement was arrived at, under which the husband agreed to return the gold ornaments kept in the locker on 3 March 2025. The husband complied with his obligations, however, the wife filed a transfer petition contending that since she had been practising at the Kollam Court, the case was liable to be transferred to Punalur, which was away from her workplace. The Single Judge allowed her petition, and the case was transferred from the Family Court, Kollam to the Family Court, Punalur.
The husband submitted that after securing the benefits flowing from the mediated settlement, the wife dishonestly and unilaterally resiled therefrom and filed the transfer petition. He further contended that that at all earlier stages she had actively participated in the proceedings and that the attempt to transfer the proceedings was made solely with the object of delaying the trial.
Analysis and Decision
The Court noted that in the transfer petition, the wife stated that it would be serious prejudice to her in participating in the trial at the Kollam Court Centre, which was her workplace, and that the distance from her residence to Punalur, the court to which transfer was ordered, was 50 kilometres, whereas the distance from the husband’s residence to Punalur was only 40 kilometres. The Court further noted that both sides admitted that the case had reached its final stage and only recording of evidence followed by final arguments was left.
The Court observed that the wife was represented by counsel of her choice before the trial court, and the husband’s counsel undertook that recording of evidence through a Commissioner could be arranged if the wife experienced any inconvenience or embarrassment in appearing before the Court, thereby minimising the necessity for personal appearance, particularly since conciliation and mediation had already concluded.
The Court opined that, after the proceedings had progressed up to the stage of trial, transfer to another court was highly unjustified and improper. The wife’s grievance existed even on 3 December 2024, when the case was posted for evidence, and the same could be addressed by appointing a Commissioner for recording evidence. The Court highlighted that under the mediated settlement agreement, the wife had expressly agreed to cooperate with the proceedings before the Family Court, Kollam, for expeditious disposal of the case, and had there been any objection to facing trial there, such an agreement would not have been entered into.
The Court agreed that the transfer petition was filed only after securing the fruits of the compromise agreement and that it resulted in further delay in disposal of the petition instituted by the husband. The Court referred to Vidhya Mundekkat v. Akhilesh Jayaram, 2021 SCC OnLine Ker 5122, wherein the Supreme Court observed that a transfer cannot be claimed by the wife in any case as a matter of course merely by pleading inconvenience.
Accordingly, the Court, while allowing the appeal, held that the order transferring the case at this advanced stage was unsustainable and liable to be set aside.
[X v. Y, Tr. Appeal (C) No. 4 of 2026, decided on 2-3-2026]
*Judgment authored by: Justice P. Krishna Kumar
Also Read: “A delay tactic”; Bombay High Court rejects wife’s transfer plea in divorce proceedings
Advocates who appeared in this case:
For the Appellant: Johnson Gomez, Sanjay Johnson, Sanjith Johnson, Abin Jacob Mathew, Deebu R., Arun Johny, Advocates.