IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.188 OF 2018 BETWEEN:
SMT.KALAVATHI P, W/O.CHANDRAKANTHA S.KAMMAR, AGED ABOUT 28 YEARS, RESIDING NOW AT NO.440, 5TH MAIN, 3RD CROSS, ATTUR LAYOUT, YELAHANKA NEW TOWN, BENGALURU – 560064. …PETITIONER (BY SRI.MANJUNATH PRASAD, ADVOCATE) AND:
SRI.CHANDRAKANTHA S.KAMMAR, S/O.SRI.SHIVARUDRACHAR, AGED ABOUT 30 YEARS, NO.739, 1ST MAIN, 1ST CROSS, CHOWDAMMA TEMPLE, BHANGLA BHADAVANE, NEW HARLAPURA, DAVANAGERE DISTRICT. ...RESPONDENT (BY SRI.SYED ANSER KALEEM, ADVOCATE) **** THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING TO PASS (a) PASS AN ORDER TRANSFERRING M.C.NO.55/2018 PENDING ON FILE OF FAMILY COURT, DAVANAGERE TO FAMILY COURT AT BENGALURU IN THE ENDS OF JUSTICE AND EQUITY. (b) PASS SUCH ANY ORDER/S AS DEEMED FIT BY THIS HON’BLE COURT IN THE ENDS OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioner and respondent.
2. Though civil petition is listed for admission, with the consent of learned counsel for the petitioner and respondent, heard arguments for final disposal.
3. This petition is filed for transfer of M.C. No.55/2018 pending on the file of Family Court, Davanagere to Family Court at Bengaluru.
4. The petitioner is the wife of the respondent.
Both were married on 13.04.2017 at Davanagere. Differences cropped up between the petitioner and respondent, as such, they could not lead marital life together. The respondent filed M.C. petition before the Family Court, Davangere, seeking decree of divorce / dissolution of marriage, which is numbered as 55/2018. The petitioner has filed C. Mis. before the Principal Judge, Family Court, Bengaluru, which is numbered as C.Mis. No.373/2018.
5. It is the case of the petitioner that she is totally dependent on her parents and she is residing at Bengaluru. She has no financial capacity to bear the expenses, as she is unemployed. If the M.C. petition No.55/2018 is transferred from Family Court, Davanagere, to Family Court, Bengaluru, she would be able to attend the court proceedings regularly.
6. The learned counsel for the respondent would strenuously contend that there are no valid grounds for transfer of the case. Even though the wife’s convenience is the main consideration while transferring of the cases, there is no particular law which lays down any rule that always the claim of the wives are to be considered for transfer. The petition for transfer are to be considered based on merits of each case. The respondent is ready and willing to pay the travel expenses for the petitioner. As such, the petition deserves to be dismissed. In support of the said contention, the counsel has relied on a decision of Hon’ble Supreme Court in Transfer Petition (Civil) No.683/2014, in the case of Pooja Choudhary vs Vinay Jaiswal.
7. In view of rival contentions, the only question that arises for consideration is that whether there are valid grounds to transfer M.C. petition No.55/2018 pending before the Family Court, Davangere, to the Family Court at Bengaluru.
8. As could be seen from the records furnished along with civil petition, the respondent – husband has filed petition under Section 12 of the Hindu Marriage Act wherein his address is shown as resident of Harihar and the address of the wife is shown as Yelahanka New Town, Bangalore. In para No.1 of the said petition, it is stated that the wife is residing in the house of her brother at Bangalore even though she is resident of Harihar town.
9. In both cause title and pleadings in the M.C. petition filed by the respondent – husband and the petition filed by the petitioner/wife for maintenance, it is stated that the petitioner is residing at Bangalore. It is also stated in the M.C. petition that the petitioner is not physically fit and she has become totally anemic. She cannot even lift one bucket of water. This clearly indicates that her health condition is not good.
10. 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.
11. The said section confers general power to transfer, withdraw and re-transfer suits, appeals or other proceedings at any stage on the application of a party. The section postulates that the Court to which the suit or appeal or other proceeding is transferred should be competent to try or dispose of the same.
12. In the instant case the first contention of the learned counsel for the respondent is that the cause of action for filing of M.C. No.55/2018 has accrued at Davangere as such the Family Court at Bengaluru is not competent to try the said case. In other words, the Family Court at Bengaluru has no territorial jurisdiction to try the case. Therefore, the question that arises for consideration is whether under Section 24 of the Code of Civil Procedure, a case can be transferred from a Court where it was instituted to some other Court, which does not have territorial jurisdiction. The cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. The point involved in this case is a pure question of law and its decision depends upon the construction of the words ‘competent to try’ occurring in Section 24(1) of the Code of Civil procedure.
13. The territorial jurisdiction can be waived because it does not go to the very root of the case as observed by the Hon’ble Supreme Court in a decision reported in AIR 1962 SC 199 Hira Lal Patni vs. Sri Kali Nath. Hence, the ground urged by the Counsel for Respondent regarding territorial jurisdiction is devoid of merits.
14. 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.
15. 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.
16. In a decision relied on by the learned counsel for the respondent in Transfer Petition (Civil) No.1278/2016 c/w Transfer Petition (Civil) No.422/2017 in the case of Santhini vs Vijaya Venkatesh, the Hon’ble Supreme Court has held as under:
8. …. The two-Judge Bench referred to some of the decisions which we have already referred to and also adverted to Ram Gulam Pandit v. Umesh J. Prasad and Rajwinder Kaur v. Balwinder Singh and opined that all the authorities are based on the facts of the respective cases and they do not lay down any particular law which operates as a precedent. Thereafter, it noted that taking advantage of the leniency shown to the ladies by this Court, number of transfer petitions are filed by women, and therefore, it is required to consider each petition on merit. Then, the Court dwelled upon the fact situation and directed that the husband shall pay all travel and stay expenses to the wife and her companion for each and every occasion whenever she was required to attend the Court at Delhi. From the aforesaid decision, it is quite vivid that the Court felt that the transfer petitions are to be considered on their own merits and not to be disposed of in a routine manner.
17. In the aforesaid decision, the Hon’ble Supreme Court has discussed about use of technology of video conferencing where both parties have equal difficulties and there is no place which is convenient to both parties. Even in para No.13, the necessity of video conferencing in certain cases and on certain occasions, the advancement of technology, the role of High Courts to issue appropriate administrative instructions to regulate the use of video conferencing are discussed. Thus, in my humble opinion, the principles laid down in the said decision are not aptly applicable to the case on hand.
18. As already discussed above, the petitioner is a housewife, she do not have any independent income. She is totally dependent on her parents or brother for her livelihood. Thus, the petitioner – wife being in a disadvantageous position will be put to hardship in attending the court proceedings before the Family Court at Davangere. In addition to that, she has also filed a petition claiming maintenance before the Family Court at Bangalore. When two proceedings in different Court which raise common question of facts and law, it is desirable that both cases should be tried together by the same judge to avoid conflict of decisions. Considering the facts and circumstances of the case, there are valid grounds for granting the relief claimed.
19. Accordingly, the civil petition is allowed. M.C. No.55/2018 on the file of the Judge, Family Court, Davangere, is directed to be transferred to the Family Court at Bengaluru.
20. The Registry of this Court is directed to communicate this order to the Family Court, Davangere, forthwith, for the purpose of transmission of records.
Sd/-
JUDGE SJ