IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR CIVIL PETITION NO.368 OF 2018 Between:
Smt. Pallavi Harish Barna W/o. Sriharsha Srinivasa Murthy D/o. Harish Barna Aged 32 years R/at No.163, O’Riordan Street Mascot, Sydney-NSW2020 Australia.
Represented by her SPA Holder Smt. D.S. Malathi W/o. Dr.B.N. Harish Aged 56 years R/at No.18, 10th “A” Main 1st Stage, Brindavan Extension Mysuru – 570 020. . ... Petitioner (By Sri Vinay N, Advocate for Sri Manmohan P.N., Advocate) And:
Sri Sriharsha Srinivasa Murthy S/o. Srinivasamurthy K.C., R/at “Mahananda Nilaya”
1st Main, New Extension K.R. Puram, Bengaluru – 560 036. … Respondent (By Sri V.Lakshmikanth Rao, L.S. Manjunath, H.V. Kathyayini Devi, Advocates) This Civil petition is filed under Section 24 of CPC praying this Hon’ble Court to allow this petition and transfer M.C.No.5159/2018 pending before the Court of the VI Additional Principal Judge, Family Court at Bengaluru to the Court of the Judge, Family Court at Mysore to be tried along with M.C.No.611/2015 pending before the Court of the Judge, Family Court at Mysore in the interest of just and equity and etc., This petition coming on for Admission this day, the court made the following:
O R D E R Though this Civil Petition is listed for admission, it is heard finally and the same is taken up for final disposal with consent of learned counsel for the parties.
2. This petition is filed under Section 24 of CPC for transfer of M.C.No.5159/2018 on the file of VI Additional Principal Judge, Family Court at Bengaluru, to the Family Court, Mysuru.
3. The petitioner is the wife and respondent is the husband. They were married on 28.11.2010. On account of certain matrimonial disputes and complications, the respondent left the company of his wife and started residing separately. Hence, the petitioner – wife has filed a petition before the Family Court, Mysuru for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 which is numbered as M.C.No.611/2015. Thereafter, respondent – husband has filed a petition against the petitioner - wife under Section 13(1) (i-a) (i-b) of the Hindu Marriage Act, 1955 before the Family Court, Bengaluru seeking for dissolution of marriage which is numbered as M.C.No.5159/2018.
4. It is the case of the petitioner that she is residing in Australia along with her daughter. Therefore, she has executed a Special Power of Attorney in favour of her mother for attending the Court proceedings before the Family Court, Mysuru.
5. The respondent – husband had filed a transfer petition before the Hon’ble High Court in C.P. No.205/2016 for transfer of M.C. Petition No.611/2015 filed by the petitioner herein for restitution of conjugal rights before the Family Court, Mysuru to Family Court, Bengaluru. But the said petition was dismissed vide order dated 09.08.2017. Thereafter, the respondent – husband has filed M.C. Petition No.5159/2018 seeking dissolution of marriage.
6. It is contended that GPA holder of the petitioner is an old lady. As such, she is unable to attend Court proceedings before the Family Court, Bengaluru. In the event of transfer of petition from Family Court, Bengaluru to Family Court, Mysuru, she can conveniently attend the Court proceedings.
7. Learned counsel for the petitioner strenuously contended that since there are two petitions i.e., M.C.No.611/2015 for restitution of conjugal rights filed by the petitioner herein and M.C.No.5159/2018 filed by the respondent for dissolution of marriage, if they are clubbed and heard together, it would be convenient for the parties to make submission. In order to avoid multiplicity of proceedings, it is necessary to take up these two petitions before the same Court.
8. Per contra, learned counsel for the respondent submits that since the petitioner is residing in Australia along with her daughter, she is not at all interested in joining the company of respondent. It is only legal formality that has to be completed for dissolution of marriage. In the event of transfer of M.C. petition from Family Court, Mysuru to Family Court, Bengaluru, both matters can be completed within one or two hearings. In the event of transfer of petition filed before Family Court, Bengaluru to Family Court, Mysuru, a direction may be issued for disposal of these matters within two months.
9. 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) xxxxxx (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.”
10. 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.”
11. As could be seen from the records, MC petition filed by the petitioner pending before the Family Court, Mysuru is of the year 2015 and MC petition filed by the respondent before the Family Court, Bengaluru is of the year 2018. In view of the decision laid down in the case of M.V. Rekha v/s. Sathya Alias Suraj reported in 2011 (2) Kar.L.J. 643, in order to avoid multiplicity of proceedings, both the matters shall have to be clubbed, heard and decided by one and the same Court.
12. Considering the submission of the counsel and the grounds urged in the petition, I am of the opinion that there are valid grounds to grant the relief claimed.
13. In the circumstances, the Civil Petition is allowed. M.C. No.5159/2018 on the file of VI Addl. Principal Judge, Family Court, Bengaluru filed by the respondent – husband is ordered to be transferred to Family Court, Mysuru and the said M.C.No.5159/2018 shall be clubbed with M.C.No.611/2015 pending before the Family Court, Mysuru. The parties shall co-operate for expedite disposal of these petitions before the Family Court, Mysuru. Both cases shall be disposed of expeditiously, preferably within two months.
SD/- JUDGE nms