IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.288 OF 2017 BETWEEN:
K.N.SMITHA RANI, W/O M.J.TARUN @ TULASIRAM, AGED ABOUT 34 YEARS. RESIDING AT:
C/O, K.A.RAJEGOWDA, SEETHA VILAS ROAD, KOTE, HOLENARASIPURA – 573211. …PETITIONER (BY SRI.SHRIPAD U SHASTRI, ADVOCATE) AND:
SRI M.J.TARUN @ TULASIRAM, S/O M.V.JAVAREGOWDA, AGED ABOUT 45 YEARS, R/O JUNIOR CLERK, SENIOR D.E.E OFFICE, SOUTH WESTERN RAILWAYS, DIVISIONAL RAILWAY, MANAGER BUILDING, BANGALORE DIVISION, BANGALORE PRESENT ADDRESS R/AT NO.47, 4TH TEMPLE ROAD, MALLESHWARAM, BENGALURU – 560003. PERMANENT ADDRESS: SRI.M.J.TARUN @ TULASIRAM, S/O M.V.JAVAREGOWDA, NEAR ANJANEYA TEMPLE, MANDAGERE VILLAGE, KIKKERI HOBLI, K.R.PET TALUK, MANDYA DISTRICT. ...RESPONDENT (BY SMT.B.S.NAGAMANI, ADVOCATE) **** THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING TO WITHDRAW MC NO3637/2017 FROM THE FILE OF II ADDL. PRL. JUDGE, FAMILY COURT, BENGALURU AND TRANSFER THE SAME TO THE COURT OF CIVIL JUDGE AND JMFC, HOLENARASIPURA AND THIS PETITION BE ALLOWED WITH COST THROUGHOUT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though this civil petition is listed for admission, heard the arguments of the counsel for the petitioner on merits for final disposal.
2. Counsel for the respondent is absent.
3. The petitioner is before this Court seeking transfer of M.C. No.3637/2017 pending on the file of II Additional Principal Civil Judge, Family Court, Bengaluru, to the Civil Judge and JMFC, Holenarasipura.
4. The petitioner is the legally wedded wife of the respondent. They were married in the year2008. On account of matrimonial disputes and other complications the petitioner could not lead the matrimonial life with the husband. She was expelled from husband’s house, as such the petitioner is compelled to reside in her parents’ house at Holenarasipura. She has filed a petition claiming for maintenance before the Civil Judge and JMFC, Holenarasipura which is numbered as C.Mis. No.110/2015. Thereafter the respondent husband has filed a M.C. Petition claiming for dissolution of marriage and divorce which is numbered as M.C. No.3637/2017 pending before the II Additional Principal Civil Judge, Family Court, Bengaluru. The respondent husband is working in Southern Railways and he is drawing salary of more than Rs.40,000/-. But whereas the petitioner is a housewife and she do not have any source of income. On account of financial difficulty she is unable to attend the Court proceedings pending before the Family Court at Bengaluru.
5. This Court had no opportunity to hear the submissions of the counsel for the respondent.
6. 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.
7. 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.”
8. 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.
9. As could be seen from the records the petitioner wife has field a C.Mis. petition claiming maintenance which is pending before the Civil Judge and JMFC at Holenarasipura. The respondent husband has filed a M.C. No.3637/2017 claiming for dissolution of marriage and divorce which is pending before the Family Court at Bengaluru wherein the address of the respondent wife is shown as resident of Holenarasipura. Thus, it is evident that the petitioner wife is residing in her parents house at Holenarasipura. As a result of which she is finding it difficult to attend the Court proceedings at Bengaluru. Under these circumstances, there are valid grounds to grant the reliefs claimed.
10. In the facts and circumstances of the case the civil petition is allowed. M.C. No.3637/2017 pending before II Additional Principal Judge, Family Court, Bengaluru, is ordered to be transferred to the court of Civil Judge and JMFC, Holenarasipura.
11. Registry is directed to issue intimation to the court of Civil Judge and JMFC, Holenarasipura, for transmission of records.
Sd/- JUDGE ykl