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.279 OF 2018 BETWEEN:
PRAVEEN S S/O SATHYA REDDY AGED ABOUT 32 YEARS R/AT HULKUL NO.340 2ND CROSS, 5TH MAIN SADANANDA NAGAR BANGALORE-38.
(By Mr. D.R. RAVISHANKAR, ADV.) AND:
K.R. PRATHIBA W/O PRAVEEN S AGED ABOUT 32 YEARS R/AT 2ND MAIN 5TH WARD, RAJKUMAR NAGAR KANAKANA PALYA, KOLAR-563101.
(By Mr. HARISH H.V. ADV.,) - - -
… PETITIONER … RESPONDENT This Civil Petition is filed under Section 24 of the CPC praying to withdraw G & WC 9/2018 pending on the file of the Principal Judge, Family Court, Kolar and Transfer the same to the court of Principal Judge, Family Court, Bengaluru for the purpose of trial and disposal of the same in accordance with law in the interest of justice and equity & etc.
This Civil Petition coming on for Admission this day, the Court made the following:-
ORDER Mr.D.R.Ravishankar, learned counsel for the petitioner.
Mr.Harish H.V., learned counsel for the respondent.
2. The civil petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Section 24 of the Code of Civil Procedure, 1908 the petitioner seeks transfer of the proceedings instituted by the respondent-wife under the Guardians and Wards Act, 1890 (hereinafter referred to as the ‘G&W Act’ for short) viz., the G&WC No.9/2018 pending on the file of Principal Judge Kolar and to transfer the same to the court of competent jurisdiction, Bengaluru.
4. Facts giving rise to filing of the petition briefly stated are that the marriage between the parties was solemnized on 29.01.2012 and two children were born from the marriage who were aged 4 and 6 years. On 09.01.2015, the respondent filed a petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) seeking restitution of conjugal rights viz., M.C.No.182/2015. On 21.1.2015, the respondent has filed a proceeding against the petitioner under Section 12 of the Domestic Violence Act, 2005 (hereinafter referred to as the ‘D.V.Act’ for short) viz., Crl.Misc.No.15/2015 at Bengaluru in which one of the relief’s claimed by the respondent is a direction to the petitioner to provide a separate accommodation to the petitioner and her children at Bengaluru. The petitioner has filed a petition under Section 13 of the Act seeking dissolution of marriage at Benglauru. The respondent-wife has instituted proceeding under the G&W Act viz., in G&W.C No.9/2018 before the Court at Kolar. The petitioner- husband has therefore, filed this petition seeking transfer of the proceeding to the court of competent jurisdiction at Bengaluru.
6. Learned counsel for the petitioner submitted that the children are prosecuting their studies at Bengaluru and they have taken admission in academic Session 2018-19 in Bengaluru. The respondent had filed a petition seeking a writ of habeas corpus against the petitioner on the ground that on 14.07.2018, the petitioner has illegally taken the custody of the children. However, it is submitted that after a Bench of this Court interacted with the children, the respondent withdrew the petition with a liberty to take recourse to such remedy as may be available to the respondent under the law. It is submitted that all the proceedings between the parties are pending before the court of Bengaluru and respondent-wife has not sought for transfer of the proceeding. Therefore, in the interest of the children, which is of paramount consideration, the proceeding pending before Kolar be transferred to competent court at Bengaluru. In support of his submissions, learned counsel has placed reliance on a decision of the Supreme Court in ‘Prateek Gupta vs. Shilpi Gupta’, 2018 2 SCC 309.
7. On the other hand, learned counsel for the respondent submitted that upto 14.07.2017, the children were with the respondent at Kolar and the petitioner has abducted the children. It is also submitted that by an order dated 22.11.2018, the Family Court has held that it has jurisdiction to entertain the proceeding under the G&W Act and the aforesaid order has been challenged by the petitioner by way of W.P.No.75/2018 before this Court in which no impugned order has been granted. It is further submitted that in case the proceeding are transferred to Bengaluru the children would suffer inconvenience and the court at Bengaluru has no territorial jurisdiction to try the proceeding. In support of the aforesaid submission learned counsel has placed reliance on a decision of Karnataka High Court in ‘MR.K.U.POOVIAH @ VIVEK vs. MRS.NAMITHA POOVIAH’, in W.P.
No.3376/2013 and decision of Madhya Pradesh High Court in ‘SMT.ABHILASHA CHOURASIYA vs. VIJAY KUMAR CHOURASIYA, in M.C.C.No.495/2014.
8. I have considered the submissions made by the learned counsel for the parties and have perused the record. Admittedly, the proceeding under Section 9 and Section 13 of the Act are pending between the parties at Benglauru. The respondent has also filed an application under Section 12 of the D.V.Act at Bengaluru. The respondent has not sought transfer of proceeding to Kolar. Admittedly, the children are presently residing in Bengaluru and are prosecuting their studies. Therefore, prima facie it cannot be said that the Family Court at Bengaluru has no territorial jurisdiction to try the proceeding. In any case, in this proceeding under Section 24 of the Code it is not necessary for this Court to record a finding on the said issue and the same is kept open to be dealt with by the court. In a petition under Section 24 the convenience of the parties is required to be taken into consideration. It is well settled in law that though Section 24 of the Code of Civil Procedure 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 13 of Hindu Marriage Act deserves to be transferred.
9. The proceeding under G&W Act has been instituted for custody of the children who are admittedly prosecuting their studies in Bengaluru. In case they are required to attend the proceeding at Kolar they will be put to inconvenience. The welfare and interest of the children is of paramount consideration. Therefore, in the facts and circumstances of the case and taking into account the fact that the children are residing in Bengaluru and the proceedings instituted in Kolar are directed to be transferred to the competent court at Bengaluru having jurisdiction.
Accordingly, the petition is allowed.
Sd/- JUDGE ss