IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.371 OF 2018 BETWEEN:
SMT.MEENAKSHI, W/O K.R.SATHISH, AGED ABOUT 30 YEARS, RESIDING AT HANAGALLI, VILLAGE, BEERIHUNDI POST, JAYAPURA HOBLI, MYSURU TALUK AND DISTRICT-570026. …PETITIONER (BY SRI.NANJUNDA SWAMY N, ADVOCATE) AND:
SRI.K.R.SATHISH, S/O SRI.RAJANNA, AGED ABOUT 39 YEARS, R/AT NO.380, 2ND CROSS, DODDAKANAHALLI, SARJAPURA ROAD, KARMALAM POST, BENGALURU – 560035. ...RESPONDENT (BY SRI.K.B.NAVEEN KUMAR, ADVOCATE) **** THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CODE CIVIL PROCEDURE PRAYING TO COURT TO PASS NECESSARY ORDERS AND THE PETITION IN M.C.NO.5190/2018 ON THE PENDING FILE OF III ADDL. PRINCIPAL JUDGE, FAMILY COURT AT BENGALURU BE RECALLED AND TRANSFERRED THE SAID CASE TO THE II ADDL. FAMILY COURT, MYSURU WHERE M.C.NO.60/2017 IS PENDING, FOR TRYING TOGETHER IN COMMON AND DISPOSED OF THEM BY COMMON ORDER, 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 before this Court seeking transfer of M.C. No.5190/2018 pending on the file of III Additional Family Court, Bengaluru, to the II Additional Family Court, Mysuru, where M.C. No.60/2017 is pending and to club both the cases.
3. The petitioner is the wife and the respondent is the husband. They were married on 02.12.2010 at Mysuru. Out of the wedlock a female child is born on 23.02.2012. The petitioner was driven out of the respondent’s house on the allegation that the petitioner was involved in a criminal case. Due to the matrimonial disputes and other complications the respondent did not join the company of petitioner. As such, she filed M.C. Petition before the Family Court, Mysuru for restitution of conjugal rights which is numbered as M.C. No.60/2017. The said petition is pending and she has also filed a petition claiming maintenance. Thereafter the respondent husband filed a petition before the Family Court, Bengaluru, seeking dissolution of marriage which is numbered as M.C. No.5190/2018.
4. It is the case of the petitioner that she is residing in her parents house at Anaganahalli village near Mysuru. She do not have income as she is totally dependent on her parents for livelihood of herself and her daughter. Thus she is unable to attend the Court proceedings in Family Court at Bengaluru.
5. Per contra, the counsel for the respondent submitted that the petitioner left the company of respondent for more than three years. It was the petitioner who deserted the respondent without any justification and has also filed a petition for restitution of conjugal rights with an intention to harass the respondent. There is no valid grounds for transfer of the case as prayed for.
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.
8. It is an admitted fact that the petitioner was the legally wedded wife of respondent and at present she is residing in her parents house along with her minor daughter. The petitioner is a housewife and she do not have any independent income to support herself and to take care of her daughter. Since the petition filed by the plaintiff for restitution of conjugal rights is before the Family Court, Mysuru, she is attending the same. The main grievance of the petitioner is that due to financial difficulty she is finding it difficult to attend the Court proceedings before the Family Court at Bengaluru.
9. In view of the principles laid down in the aforesaid decision, 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.
10. In the circumstances, the Civil Petition is allowed. M.C. No.5190/2018 pending on the file of III Additional Family Court, Bengaluru is ordered to be transferred to the II Additional Family Court, Mysuru and the said petition shall be clubbed along with M.C. No.60/2017.
11. The registry is directed to communicate the order to the Family Court, Bengaluru, for the purpose of transmission of records.
Sd/- JUDGE ykl