IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.248 OF 2018 BETWEEN:
Smt. Sahanashree.K.G, W/o Kumarswamy C.E, C/o Gurupadaiah-Father, Aged about 36 years, R/at “Jangamajyothi”, Mallikarjuna Layout, Vidyanagara, Shivamogga-577201 …Petitioner (By Sri Pruthvi Wodeyar, Advocate) AND:
Sri Kumaraswamy C.E, S/o Eswarswamy, Aged about 39 years, R/at No.24, 6th Main, 13th “A” Cross, BTM II Stage, Nainappa Shetty Palya, Bangalore-76 ...Respondent (By Smt. Bhanu Prabha, Advocate) **** This Civil Petition is filed under Section 24 of the Civil Procedure Code Praying to i) Transfer the M.C.No.615/2017 pending on the file of the II Addl. Prl.
Judge, Family Court, Bangalore to the Family Court at Shivamogga. ii) Pass such other order or orders as this Hon’ble Court deems fit to grant under the facts and circumstances of the case, in the interest of justice.
This petition coming on for admission this day, the court made the following:
ORDER Though this civil petition is listed for admission, the same is taken up for final disposal with the consent of learned counsel for both parties.
2. The petitioner is before this Court seeking transfer of MC No.615/2017 pending before the II Additional Principal Judge, Family Court, Bengaluru, to the Family Court at Shivamogga.
3. The petitioner is legally wedded wife of the respondent herein/petitioner in MC No.615/2017 and they were married on 13.11.2009. Out of wed lock, petitioner gave birth to a female child on 22.03.2011. On account of some matrimonial disputes and other complications they could not lead marital life together. Due to the harassment caused by the husband, the petitioner-wife has filed a case under Section 12 R/w Section 20 of the Protection of Women from Domestic Violence Act, 2005 against Respondent-husband. The petitioner has also filed a petition claiming maintenance before the Family Court at Shivamogga, which is numbered as C.Misc No.184/2016. When the said proceedings are pending before the Court, the respondent-husband has filed a petition under Section 13 (1) (i-a) and (i-b) of the Hindu Marriage Act, 1955 seeking divorce, which is numbered as M.C.No.615/2017.
4. It is the case of the petitioner that on account of Domestic Violence and harassment caused by the respondent-husband and family members, she was compelled to leave the matrimonial house and she is residing in her parents house at Shivamogga along with her minor daughter. The distance between Shivamogga to Bengaluru is 280 Kms. As such, she has financial difficulty to attend the Court proceedings and there is no one to look after her minor child. Her parents are unable to take care of her daughter. If the petition is transferred to Family Court at Shivamogga, she can conveniently attend the Court proceedings.
5. The learned counsel for respondent strenuously contended that the petitioner has filed a petition deliberately to harass the respondent. She has also filed a C.Misc No.184/2016 for maintenance by the suppressing facts. It is only when the respondent- husband has filed M.C petition before the Family Court, Bengaluru, the order passed in C.Misc.No.184/2016 was brought to the notice of the respondent-husband. The said order was challenged in Crl.A.No.51/2017 before the Court of Principal District and Sessions Judge, Shivamogga. Despite best efforts made by the respondent-husband, the petitioner is not willing to live with the respondent-Husband. The respondent has made provision for welfare of minor daughter. Due to the health problems, the respondent-husband is advised not to travel long distance. As such, he is unable to attend the Court proceedings at Shivamogga. There are no valid grounds to transfer of the petition, hence, the petition deserves to be dismissed.
6. In view of the rival contentions, the only question that arises for consideration is whether there are valid grounds for transfer of M.C No.615/2017 to JMFC-II at Shivamogga.
7. 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.
8. 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. 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.
10. On perusal of the records, it is seen that the respondent-husband has filed a M.C Petition wherein, the petitioner-wife is shown as a resident of Shivamogga. Thus, it is evident that on the date of the filing of M.C Petition, the wife was residing at Shivamogga. The main contention of the respondent- husband is that due to health problems, he is unable to travel a long distance but the same cannot be a valid ground as the medical records do not make out a case that he is bed ridden and unable to attend the court proceedings at Shivamogga. It is pertinent to note that the petitioner is living in her parents house along with her minor child. Under these circumstances, she is finding difficult to travel long distance to attend the Court proceedings at Bengaluru.
11. 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. petition No.615/2017, which is pending before the II Addl. Principal Judge, Family Court, Bengaluru, is ordered to be transferred to the Family Court at Shivamogga.
12. Both the parties are directed to co-operate for expeditious disposal of MC petition before Family Court, Shivamogga and they are directed to appear before the Shivamogga Court on 10.06.2019.
Registry is directed to send intimation to Family Court, Bengaluru, for transmission of records.
Sd/- JUDGE rv