IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR BETWEEN:
CIVIL PETITION NO.299 OF 2016 MUBASHIRA KHANUM, W/O SUNDAR, D/O SULAIMAN KHAN, AGED ABOUT 40 YEARS, R/AT STAFF NURSE, SCOT GARMENT UNIT 17, SL.NO.61, NARE PALLI KASABA HOBLI, BAGEPALLI TALUQ, CHIKKA BALAPURE DISTRICT.
NOW PRESENTLY AT NO.382, SHIKARI PALAYA, GOLLA HALLI, MAIN NEAR ORIENTAL SCHOOL, HULIMANGALA POST, BANGALORE – 560 105. …PETITIONER (BY SRI SYED KHALEEL PASHA, ADVOCATE) AND:
SUNDAR, S/O SOLOMAN, MAJOR, R/AT YASSALLURU, YASSALUR HOBLI, SAKLESHPURA TALUQ, HASSAN DISTRICT-560 005. PRESENTLY RESIDING C/O LEELA KUMARI, M.D.PAULA, NO.336, 2ND STAGE, 2ND CROSS, ARRAYA BATTA ROAD, JAYANAGAR, HASSAN – 560 005. …RESPONDENT (RESPONDENT SERVED) THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING TO A) TRANSFER THE CASE BEARING MC NO.28/2016 FILED BY THE RESPONDENT AGAINST THE PETITIONER FOR THE RELIEF OF DISSOLUTION OF MARRIAGE, PENDING BEFORE THE PRL. JUDGE, FAMILY COURT AT HASSAN BE TRANSFERRED TO FAMILY COURT AT BENGALURU.
THIS CIVIL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though this civil petition is posted for admission, heard the arguments of the learned counsel for petitioner for final disposal as the respondent is unrepresented despite service of notice.
2. The petitioner is before this Court seeking transfer of M.C.No.28/2016 pending before the Principal Judge, Family Court, Hassan to Family Court, Bengaluru.
3. Learned counsel for the petitioner has filed a memo stating that the M.C.No.28/2016 pending before the Family Court at Hassan, is posted for evidence.
4. Registry is directed to issue intimation to the Family Court, Hassan for transformation of records.
5. The facts briefly stated that the petitioner is legally wedded wife of respondent and their marriage was solemnized on 11/10/2004 at Bhagipalli and the said marriage was registered before the sub-registrar office. Out of the wedlock, they have got two daughters aged about 11 years and 4½ years respectively. Thereafter, due to some matrimonial disputes and complications, she was compelled to live separately. The respondent filed petition under Section 27(1) (b) (d) (e) of the Special Marriage Act, seeking dissolution of marriage before the Family Court, Hassan. The same was numbered as M.C.No.28/2016.
6. The petitioner is residing at Bengaluru, along with her two minor children. Therefore, she is unable to attend the Court proceedings at Hassan. The respondent has deliberately filed the petition before the Family Court, Hassan, with an intention to harass the petitioner. If the M.C.No.28/2016 is transferred to Bengaluru, she can conveniently attend the Court proceedings and defend her case.
7. This Court has no opportunity to hear the submission of respondent as he has remained absent despite service of notice.
8. 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.
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.”
9. It is an admitted fact that the petitioner is a legally wedded wife of respondent. In the cause-title of M.C.No.28/2016, the petitioner is residing at Nare palli, Kasaba Hobli, Bagepalli Taluk,, Chikkaballapur District. During the course of argument, learned counsel for the petitioner has submitted that she has shifted to Bengaluru in order to educate her both the daughters. The petitioner is required to maintain her two minor daughters, under such circumstances, she will be to inconvenience and hardship in attending the court proceedings before the Family Court, Hassan.
10. In the facts and circumstances of the case, the petitioner has made out a valid grounds to grant the relief claimed. Accordingly, the petition is allowed. M.C.No.28/2016 pending before the Principal Judge, Family Court, Hassan, is ordered to be transferred to Family Court, Bengaluru.
Sd/- JUDGE SMJ/HB