IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.301 OF 2017 BETWEEN:
SMT.KALAVATHI, W/O K.S.SATHEESH, D/O TYAGARAJU, NOW AGED 30 YEARS, R/O NO.61, 10TH MAIN ROAD, T.R.SHAMANNA NAGAR, BENGALURU – 560050, WORKING AT: SILICON HONDA, NO.25, PATTANAGERE MAIN ROAD, R.V.VIDYANIKETAN, R.R.NAGAR, BEHIND R.V.COLLEGE, MYSORE ROAD, BENGALURU – 560098. …PETITIONER (BY SRI.J.S.HALASHETTI, ADVOCATE) AND:
SRI.K.S.SATHEESH, S/O SIDDAIAH, AGE 38 YEARS, KSRTC DRIVER-CUM-CONDUCTOR, WORKING AT KUNIGAL DEPOT, R/AT KIRANGOOR VILLAGE, AMRUTHUR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT. ...RESPONDENT (BY SRI.M.G.RAMAKRISHNAIAH, ADVOCATE) THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING TO ALLOW THE PETITION AND WITHDRAW MC NO.48/2017 PENDING ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC COURT, KUNIGAL AND TRANSFER THE SAME TO THE FILE OF FAMILY COURT AT BENGALURU 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 parties heard arguments for final disposal.
2. The petitioner is before this Court seeking transfer of M.C. No.48/2017 pending on the file of Senior Civil Judge and JMFC, Kunigal to the Family Court at Bengaluru.
3. The petitioner is the legally wedded wife of the respondent. They were married on 21.04.2005 at Chamarajpet, Bengaluru. Thereafter on account of matrimonial disputes and other complications the petitioner was compelled to leave her matrimonial house after 2014. The respondent husband filed a petition for restitution of conjugal rights against the petitioner before the Senior Civil Judge, Kunigal which is numbered as M.C. No.48/2017. On account of harassment done by the respondent husband the petitioner is residing in her parents house at Bengaluru.
4. Reiterating the contentions made in the petition the counsel for the petitioner would contend that the petitioner is working in Bengaluru. She is unable to attend the court proceedings at Kunigal as there is apprehension of threat by the husband. On earlier occasions the petitioner was assaulted by the respondent husband, even hot milk was thrown on her to cause the disfiguration. Under such circumstances, the petitioner apprehends the similar attempts by the respondent. In the event of transferring the case to the Family Court at Bengaluru she can conveniently attend the court proceedings and defend her case.
5. Per contra, the learned counsel for the respondent submitted that the allegations made by the petitioner are false and concocted. The petitioner herself has admitted in the proceedings of C.C. No.4914/2015 that there is no harassment. Thus, it is evident that the petitioner has made frivolous allegations in order to seek the transfer of M.C. No.48/2017. There are no valid grounds for transfer of M.C. petition to Family Court at Bengaluru. Thus the petition deserves to be rejected.
6. In view of the rival contentions the only question that arises for consideration is, whether the petitioner has made out valid grounds for transfer of M.C. Petition to Family Court at Bengaluru.
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. It is well settled law that even though Section 24 of the Code of Civil Procedure confers power on the Court to transfer the proceedings, this power has to be exercised by looking into the facts and circumstances of the case.
9. 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. ”
10. In the case of Rajani Kishor Pardeshi –vs- Kishor Babulal Pardeshi reported in (2005) 12 SCC 237 the Hon’ble Supreme Court has held that in the matrimonial dispute, convenience of the wife is the paramount consideration.
11. In the instant case the petitioner is residing in her parents house at Bengaluru and she has narrated the grounds regarding the harassment done by her husband on the earlier occasions. At this stage it is needless to make elaborate discussion about all these aspects. In view of the enunciation of law by the Supreme Court and in the facts and circumstances of the case, there are valid grounds to transfer the M.C.48/2017 as prayed for.
12. M.C.Petition No.48/2017 pending on the file of Senior Civil Judge and JMFC, Kunigal, is ordered to be transferred to the Family Court at Bengaluru.
13. Registry is directed to communicate the order to the Senior Civil Judge and JMFC, Kunigal, for the purpose of transmission of records.
Sd/-
JUDGE ykl