IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.330 OF 2017 BETWEEN:
SMT.K.ROOPASHREE, W/O SUNIL KUMAR N, D/O H.E.KRISHNAPPA, AGED ABOUT 36 YEARS, RESIDING AT NO.A101, 1ST FLOOR, KRISHNAPRAKASH APT. 16TH MAIN ROAD, B.T.M.LAYOUT, BENGALURU – 560068. …PETITIONER (BY SRI.SHANKAR G & SANDHYA M P, ADVOCATES) AND:
SRI SUNIL KUMAR N, S/O NAGARAJ, AGED ABOUT 38 YEARS, RESIDING AT ADARSHANAGAR, MALUR, KOLAR DISTRICT. ...RESPONDENT (BY SRI.K.SURESH, ADVOCATE) THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING TO TRANSFER THE MATRIMONIAL CASE IN M.C.NO.4 OF 2017 FROM THE SENIOR CIVIL JUDGE AND JMFC, AT MALUR, KOLAR DISTRICT, TO FAMILY COURT AT BENGALURU, FOR ADJUDICATION AND DISPOSAL IN ACCORDANCE WITH LAW, PASS SUCH OR FURTHER ORDERS AS THIS HON’BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though this Civil Petition is listed for admission, in view of consent of the learned counsel for the petitioner and the respondent the matter is heard on merits.
2. The petitioner is the wife and the respondent is the husband. They were married on 17.02.2013 at Bengaluru. They resided together for some time at Malur. Thereafter the petitioner came back to Bengaluru and gave birth to a child. Due to the matrimonial disputes and other complications the petitioner was not taken back by the respondent and he filed a petition under Section 13(1)(ia)(ib) of the Hindu Marriage Act seeking divorce and dissolution of marriage before the Senior Civil Judge, Malur, which is numbered as M.C. No.4/2017. The petitioner has filed a complaint against the husband under Domestic Violence Act. The said case is pending before the MMTC-VI at Bengaluru.
3. It is the case of the petitioner that she has got a small child and she do not have income of her own. The petitioner is residing in her parents house and she is dependent on them for her livelihood. On account of the financial difficulty she is unable to attend the Court proceedings at Malur.
4. Per contra, learned counsel for the respondent submitted that frivolous complaints are filed against the respondent under Domestic Violence Act and another complaint was also filed by making frivolous allegations about dowry harassment. The present petition for transfer is also filed with an intention to harass the respondent. There are no valid grounds for transfer.
5. 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.
6. 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.”
7. It is admitted fact that out of the wedlock the petitioner has given birth to a son who is aged about five years. The petitioner is the housewife and she is totally dependent on her parents for her livelihood. Under these circumstances she cannot be compelled to attend the Court proceedings at Malur.
8. Considering the submissions of the counsels and the grounds urged in the petition there are valid grounds to grant the relief claimed.
9. In the circumstances, this Civil Petition is allowed. M.C. No.4/2017 pending before the Senior Civil Judge at Malur is ordered to be transferred from Malur to Bengaluru Family Court.
10. The registry of this Court is directed to communicate the order to the Senior Civil Judge at Malur, for the purpose of transmission of records.
Sd/- JUDGE ykl