IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.134 OF 2017 BETWEEN:
SMT.GEETHA R SHETTY, W/O RAVI RAJ A SHETTY, AGE: 35 YEARS, OCC: HOUSEHOLD, R/O NEAR GOVERNMENT CHAVADI, KILLA BHAG, TERDAL, TQ: JAMKHADI, DIST: BAGALKOT PIN:587315 (BY SRI.RAJA L, ADVOCATE) AND:
SHRI RAVIRAJ A SHETTY, S/O ANNAPPA SHETTY, AGE: 44 YEARS, OCC: BUSINESS, R/O KATTEKAKLU, MELAPANKTISHALE, SHIROOR,TQ:KUNDAPUR DIST: UDUPI PIN:575201 HOTEL MANISHA EXECUTIVE MIRAJ KAGWAD ROAD MHAISAL TALUK MIRAJ TALUK SANGLI DISTRICT MAHARASHTRA – 09 ... PETITIONER ... RESPONDENT (BY SMT.NATASHA N.MURTHY, ADVOCATE FOR SRI.VIGNESH SHETTY, ADVOCATES) THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC PRAYING TO TRANSFER THE MC NO.106/2016 PENDING ON THE FILE OF SENIOR CIVIL JUDGE, KUNDAPUR TO SENIOR CIVIL JUDGE, BANAHATTI IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though this petition is listed for admission, with the consent of the learned counsel for the petitioner and the respondent, heard arguments on merits for final disposal.
2. The petitioner-wife is seeking transfer of M.C.No.106/2016 pending before the Court of Senior Civil Judge, Kundapura to the Senior Civil Judge, Banahatti.
3. The petitioner is the legally wedded wife of the respondent. They were married on 10.05.2007 at Kundapura. Both of them lead marital life only for one month. Thereafter, on account of the harassment done by the respondent-husband and his family members for dowry, petitioner-wife was compelled to leave the house of her husband. Out of their wedlock, they gave birth to one male baby and one female. At present the petitioner is residing at her parents house. Petitioner has filed a petition seeking divorce before the Senior Civil Judge, Banahatti, which is numbered as M.C.No.9/2016. As a counter blast, the respondent- husband has filed a petition before the Senior Civil Judge, Kundapura, for restitution of conjugal rights, which is numbered as M.C. No.106/2016.
4. Counsel for the petitioner-wife has submitted that the petitioner is residing in her parents house along with the minor children at Terdal. The distance between Terdal to Kundapura is 450 kilometers. Petitioner, being a housewife, is unable to bear the traveling expenses and not able to travel long distance. The respondent has already appeared in M.C.No.9/2016 filed by the petitioner before the Senior Civil Judge, Banahatti and has also filed objections to the main petition. If the petition filed before the Kundapura Court is transferred to the Court at Banahatti, the petitioner-wife can conveniently attend the Court proceedings.
5. Counsel for the respondent-husband has submitted that there are no valid reasons to transfer the case as prayed for. The petitioner-wife has deliberately filed a petition before the Senior Civil Judge, Banahatti, with an intention to harass the respondent-husband. Hence, this petition deserves to be dismissed.
6. In view of the rival contentions, the only question that arises for consideration is:
“Whether there are valid grounds for transfer of M.C.No.106/2016 pending before the Court of Senior Civil Judge, Kundapura to the Senior Civil Judge, Banahatti?”
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. Further, when two proceedings in different Courts which raise common question of fact and law and when the decisions are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.”
9. In the case of ‘Sumita Singh vs. Kumar Sanjay and another’ in AIR 2002 SC 396, Hon’ble Supreme Court observed that it was the husband’s suit against wife and, therefore, convenience of wife has to be taken into account and in the case of ‘Rajani Kishor Pardeshi vs. Kishor Babulal Pardeshi’ (2005) 12 SCC 237, wherein it has been held that in a matrimonial dispute, convenience of the wife is of the paramount consideration.
10. In the case of ‘Sumita Singh vs. Kumar Sanjay and another’ in AIR 2002 SC 396, Hon’ble Supreme Court observed that it was the husband’s suit against wife and, therefore, convenience of wife has to be taken into account and in the case of ‘Rajani Kishor Pardeshi vs. Kishor Babulal Pardeshi’ (2005) 12 SCC 237, wherein it has been held that in a matrimonial dispute, convenience of the wife is of the paramount consideration.
11. As could be seen from the records, the petitioner-wife has filed M.C. petition before the Prl. Senior Civil Judge, Jamakhandi, which is transferred to Senior Civil Judge, Banahatti. Thereafter, the respondent-husband has filed a petition under Section 9 of the Hindu Marriage Act before the Senior Civil Judge, Kundapura. The cause title in M.C No.106/2016 filed by the husband discloses that the he is working as Executive in Hotel Manisha, Miraj Taluk, Sangli District, which is quite nearer to Banahatti than Kundapura. As such, the respondent-husband can conveniently attend the Court proceeding at Banahatti.
The petitioner, being a housewife, does not have any independent source of income and as such, she would be put to great hardship in attending the Court proceedings at Kundapura.
12. Under these circumstances, there are valid grounds for transfer of M.C. petition as prayed for.
13. In the facts and circumstances of the case, this civil petition is allowed. M.C. No.106/2016 pending before the Court of Senior Civil Judge, Kundapura is ordered to be transferred to the Senior Civil Judge, Banahatti.
Registry is directed to issue intimation for transmission of records.
Sd/- JUDGE BSR/HB*