IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CIVIL PETITION NO.82 OF 2018 BETWEEN:
Mrs. Olivia D’Souza W/o. Prakash Peedikayil, Aged about 36 years R/o. Gaytown, Near Masjid, Bangarappanagar, Shirwad Karwar-581 306 Presently residing at:
Near Government High School Sodoixem, Canacona, Goa – 403 702.
(By Sri. V.P. Kulkarni, Advocate) AND:
Mr. Prakash Peedikayil, S/o. Anthony Peedikayil Aged about 37 years R/o. No.18, HRBR Layout, III Block, II Main, III Cross Kacharakanahalli, Bangalore. 560 084.
(By Sri. V.S. Biju, Advocate) … Petitioner … Respondent This Civil Petition is filed under Section 24 of the Code of Civil Procedure, praying to transfer the M.C.No.5527/2017 which is pending before the V Addl. Principal Judge, Family Court, Bangalore to the District and Sessions Judge, Uttara Kannada District, Karwar, in the interest of justice and equity.
This Civil Petition coming on for Admission this day, the Court made the following:-
ORDER Mr. V.P. Kulkarni, learned counsel for the petitioner.
Mr. V.S. Biju, learned counsel for the respondent.
2. The civil petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. This petition under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) has been filed by the wife seeking transfer of the proceedings instituted by the respondent under Section 10 of the Indian Divorce Act, 1869 (hereinafter referred to as ‘the Act’ for short) from Bengaluru to Karwar. From the pleadings of the petition, it is evident that the petitioner-wife is the resident of Karwar and has instituted the proceedings under Section 125 of the Code of Criminal Procedure, 1974 seeking maintenance against the respondent at Karwar. Admittedly, the respondent has appeared in the proceedings under Section 125 of the Code and has contested the proceedings.
4. It is well settled in law that though Section 24 of the Code confers power on Court to transfer proceeding, yet this power has to be exercised with circumspection and care. Convenience of the parties has to be taken into account. In the case of ‘RAJWINDER KAUR vs. BALWINDER SINGH’ in (2003) 11 SCC 726, Hon’ble Supreme Court had directed transfer of proceeding taking into account the fact that wife was required to travel long distance and was required to take care of daughter aged four years. Similarly, 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, the proceeding instituted by the respondent under Section 10 of the Act deserves to be transferred.
5. In view of the enunciation of law and taking into account that the respondent has already contested the proceedings under Section 125 of the Code at Karwar, I deem it appropriate to direct transfer of the proceedings instituted by the petitioner from Bangalore to Karwar.
6. Accordingly, it is directed that the proceeding instituted by the respondent under Section 10 of Act in M.C.No.5527/2017 which is pending before the V Additional Principal Judge, Family Court, Bengaluru shall stand transferred to the Court of competent jurisdiction at Karwar. The Court at Karwar shall decide the proceeding expeditiously, in accordance with law.
Accordingly, the petition is allowed.
Sd/- JUDGE BMV*