Kerala High Court: Shircy V. J., while allowing the present petition against the original petition filed in the family court, reiterated, “In matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.”
Background
The present petition is filed by the respondent in the original petition no. 557 of 2020, to seek transfer of the said petition from Family Court, Attingal to Family Court, Chavara.
It is submitted by the counsel for the petitioner that the petitioner is currently residing at Puthukkad which is hardly 6 km from the Family Court, Chavara where two cases were pending. Now she has to undertake a long journey to contest her case as the Family Court at Attingal is situated 64 km away from her place of residence. Such being the case, it will become extremely difficult for her to attend the court proceedings before the Family Court, Attingal with her child.
Observation
Upon observing the facts and circumstances of the present case, the Court acknowledged the genuineness of the prayer sought and further said that the factum of convenience tilts in the favour of the wife. It was further specified by the Court that, “…in matrimonial disputes, while considering transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.” Reliance was placed over, Sumita Singh v. Kumar Sanjay, (2002) KHC 1889, Sailaja V v. V. Koteswara Rao, (2003) KHC 3105 and Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi, (2005) 12 SCC 237 against the same.
Decision
While concurring with the settled precedents upon the said premise, the Court allowed the petition for transfer in the interests of justice and good conscience.[Kavitha v. Gopakumar, 2020 SCC OnLine Ker 6098, decided on 30-11-2020]
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What about equality?
As a well known principle of law, Article 14 does not deny differential treatment per se. (Concept of intelligible differentia and nexus with the object) If the Court, in any case finds that one of the parties require a differential treatment to meet the ends of justice, preference may be given upon the same. Narrowing down to the present case, the Court has placed reliance over the circumstances of the petitioner, that is, distance of 66km which she would have to traverse for the proceedings, so to conclude that the balance of convenience falls in the favour of the petitioner. Lastly, any text must be understood in context and not in isolation. Equality has varied dimensions and has been read differently in different cases.