IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.88 OF 2018 BETWEEN:
Dr.K.Bindiya, Aged about 27 years, W/o T.K.Sathish D/o K.Rajanna, R/o No.491, ‘Ravi Nilaya’ 4th Cross, Labour Office Road, Tilak Nagar, Shivamogga-577205. …Petitioner (By Sri P.N.Harish, Advocate) AND:
T.K.Sathish, Aged about 32 years, S/o N.Krishnamurthy, R/o N.09, 11th Cross, Thimmaiah Garden, R.T.Nagar, Bengaluru-560032. …Respondent (By Sri D.Sadashiva, Advocate) **** This Civil Petition has filed under Civil Petition under Section 24 of CPC, praying to a) withdraw the case bearing number M.C.No.321/2018 form the file of Hon’ble II Additional Principal Judge, Family Court, Bengaluru and transfer to the file of Hon’ble Family Court, Shivamogga by allowing this petition with costs in the ends of justice.
This Civil Petition coming on for Orders this day, the court made the following:
ORDER Though this Civil Petition is listed for Orders on I.A., with consent of learned counsel for both parties, arguments are heard on main petition and taken for final disposal.
2. The petitioner is before this Court seeking transfer of MC.No.321/2018 on the file of II Additional Principal Judge, Family Court, Bengaluru to Family Court, Shivamogga.
3. Brief facts of the case are that the petitioner- wife and respondent-husband were married on 26.10.2014 at Veerashaiva Kalyana Mantapa, Shivamogga. Out of the wedlock, petitioner delivered a male child. On account of the matrimonial disputes and complications between the petitioner and respondent. The petitioner-wife was compelled to live separately and thereafter, the respondent-husband has filed petition under Section 9 of Hindu Marriage Act, 1955 for Restitution of Conjugal Rights before the Principal Family Court Bengaluru which is numbered as MC.No.321/2018.
4. It is the case of the petitioner that she is residing with her parents at Shivamogga along with minor child. The distance between Shivamogga to Bengaluru, is about 300 kms. As such, she is facing difficulty to attend the Court proceedings at Bengaluru. The petitioner has to look after the minor child, it is difficult for her to travel long distance to attend court proceedings by leaving her minor child at home.
5. Per contra learned counsel for the respondent submits that the respondent is unemployed and is making efforts to find a job for his livelihood. In the event of transfer of MC petition to Shivamogga, he will be put great hardship. There are no grounds to transfer MC petition.
6. In view of the rival contentions, the only question that arises for consideration is whether there is a valid ground for transfer of petition as prayed for.
7. Section 24 of the Code of Civil Procedure provides for the general power of transfer and withdrawal of the suits, appeal or other proceedings. The relevant provision is sub-section (1)(b) of Section 24, which is as under:
“24. General power of transfer and withdrawal.-
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage,— (a) ….
(b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it; and (i) try to dispose of the same: or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the court from which it was withdrawn.
8. In the case of M.V. Rekha v/s. Sathya Alias Suraj reported in 2011 (2) Kar.L.J. 643, it is held as under:
“15. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that ends of justice demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of either of the parties, the social strata of the spouses and behavioural pattern, their standard of life antecedent to marriage and subsequent thereon and the circumstances of either of the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Generally, it is the wife’s convenience which must be looked at while considering transfer.”
9. It is an admitted fact that the respondent has filed MC petition for Restitution of Conjugal Rights wherein the address of respondent is shown in the cause-title Shivamogga. The petitioner is residing along with her parents and minor child at Shivamogga. Even though she does not have any financial difficulty to attend the court proceedings, she has to take care of her minor child. Since Shivamogga is at distance of about 300 kms, from Bengaluru it will be difficult for her to attend court proceedings at Bengaluru by leaving her minor child at home.
10. Thus, this Court is of the view that petitioner has made out a valid ground for transfer of MC petition.
Under these facts and circumstances of the case, the civil petition is allowed. MC No.321/2018 pending on the file of II Additional Principal Judge, Family Court, Bengaluru is ordered to be transferred to Family Court, Shivamogga.
11. Both the parties are directed to appear before the Family Court, Shivamogga on 09.04.2019. Since MC petition is of the year 2018 and they shall cooperate for early disposal of the matter.
Registry is directed to send intimation to the II Additional Principal Judge, Family Court, Bengaluru for transmission of records to the Family Court at Shivamogga.
Sd/- JUDGE rv