IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.336 OF 2017 BETWEEN:
SMT.MYTHRI, W/O M.MAHESH, D/O SHIVALINGAIAH, AGED ABOUT 26 YEARS, R/O NEAR CHIKKAMMA TEMPLE, HOSABOODANURU, MANDYA TALUK, MANDYA DISTRICT – 571426.
…PETITIONER (BY SMT.ARCHANA MURTHY.P, ADVOCATE) AND:
M.MAHESH, S/O T.MALLAIAH, AGED ABOUT 29 YEARS, R/AT NO.39, 2ND CROSS, 1ST MAIN ROAD, MARAPPA LAYOUT, RAJARAJESHWARI NAGAR, BENGALURU – 560 098 (BY SRI VINOD KUMAR C.C., ADVOCATE) **** ...RESPONDENT THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF THE CIVIL PROCEDURE CODE PRAYING TO COURT TO TRANSFER M.C.No.3036/2017 PENDING BEFORE THE III ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU TO PRINCIPAL CIVIL JUDGE, (SR.DN) MANDYA IN THE INTEREST TO 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, heard arguments on merits for final disposal.
Counsel for the respondent is absent.
2. The petitioner before this Court is seeking transfer of MC No.3036/2017 pending before the III Addl. Principal Judge, Family Court, Bengaluru, to Principal Civil Judge, (Sr.Dn.) Mandya.
3. The petitioner is the wife of the respondent and their marriage was performed on 30.05.2016 at Maddur. Due to some matrimonial disputes and other complications, they could not lead matrimonial life together. The respondent-husband and his family members started ill-treating the petitioner-wife and demanded additional dowry, as such the petitioner was compelled to leave the house of her husband. The petitioner has logged a police complaint for the offences punishable under Sections 143, 498A, 323, 504, 506 and 149 of IPC. The petitioner had also filed a petition under Domestic violence Act, which is registered as Crl.Misc.No.198/2017 and the same is pending before the JMFC, Mandya. Thereafter, the respondent- husband has filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights before the Family Court at Bengaluru, which is numbered as M.C. Petition No.3036/2017.
4. The petitioner is residing in her parents house at Hosaboodanuru village and she do not have any independent source of income, as such, she is finding it difficult to attend the Court proceedings at Bengaluru. In addition to that, the petitioner is apprehending life threat by the respondent-husband.
5. This Court had no opportunity to hear the submissions of the counsel for the respondent-husband as the counsel for respondent is absent.
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. 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.”
8. 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.
9. According to the petitioner, she has filed Crl.Misc.No.198/2017 under Domestic Violence Act and criminal case for dowry harassment, which are pending before the Courts at Mandya, and the petition filed by the respondent-husband is pending before the Family court, Bengaluru. The cause title in M.C.No.3036/2017 filed by the respondent-husband confirms that the petitioner-wife is residing at Hosaboodanuru Village, Mandya Taluk, Mandya. It is submitted that the petitioner is residing in her parents house and not having any independent source of income. Thus, it is evident that on account of the financial difficulty and other their problems she is unable to attend the court proceedings at Bengaluru.
10. In the facts and circumstances of the case, there are valid grounds to grant the relief claimed.
Accordingly, the Civil Petition is allowed. M.C.No.3036/2017 pending before the III Addl. Principal Judge, Family Court, Bengaluru, is ordered to be transferred to Principal Civil Judge, (Sr.Dn.) Mandya.
Registry is directed to give intimation for transmission of records.
Sd/- JUDGE HB*/BSR