IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.321 OF 2018 BETWEEN:
Shwetha.C W/o Gopalakrishna D/o Chikka Anjinappa Aged About 32 Years, R/at Sanjeevini Nilaya, 3rd Cross, Siddarameshwara Extension, Batawadi, Tumkuru Town, Tumkuru - 576 101. ... Petitioner (By Sri Hanumantharayappa.K, Advocate) AND:
Gopalakrishna K. B. S/o Babanna, Aged About 40 Years, R/at Madava Nagar B.H.Road, Gowribidanur Town, Chikkaballapur District-562101 ... Respondent (By Sri S Nagesh & Sri D.Krishnappa, Advocate) This Civil Petition has filed under Section 24 of CPC, praying this Hon’ble Court to order for transfer of MC.No.17/2017 from the Court of Senior Civil Judge and JMFC at Gowribidanuru to the Principal Judge, Family Court at Tumakuru, by allowing this petition in the interest of justice and equity.
This Civil 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 M.C.No.17/2017 pending on the file of the Senior Civil Judge and J.M.F.C., Gowribidanur to the Principal Judge, Family Court, Tumakuru.
3. Brief facts of the case are that the petitioner is the legally wedded wife of respondent. They were married on 12.12.2010 at Tumakuru. On account of marital disputes and other complications, both of them could not lead a marital life together. On account of the harassment by the respondent-husband for dowry, the petitioner was compelled to stay in her parents house at Tumakuru. Thereafter, the respondent-husband has filed a petition in M.C.No.17/2017 for restitution of conjugal rights as a counter blast for the complaint filed by the petitioner for the offences punishable under Sections 498-A, 504, 506, 307 read with 34 of IPC. The petitioner-wife had filed an application before the Senior Civil Judge and J.M.F.C., Gowribidanur for transfer of M.C.No.17/2017. But the same was rejected as the said Court had no jurisdiction to pass an order regarding transfer.
4. The serious contention made by the petitioner-wife in M.C No.17/2017 is that she being a housewife does not have any independent source of income, she is totally dependent on her parents and as such, she has got a minor child to be looked after. As such, she is unable to attend the Court proceedings at Gowribidanur.
5. Per Contra, learned counsel for the respondent-husband strenuously contends that the transfer petition is filed on frivolous grounds the distance between Gowribidanur to Tumakuru is hardly 60 kms, as such, conveniently she can attend the Court proceedings at Gowribidanur. The respondent-husband at Gowribidanur, is ready to bear the traveling expenses of the petitioner-wife. There are no valid grounds for granting the relief as claimed.
6. In view of the rival contentions, the only question that arises for consideration is whether there is a valid ground for transfer of M.C No.17/2017 to the Principal Judge Family Court, Tumakuru.
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.
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. The cause title in M.C.No.17/2017 clearly goes to show that the petitioner-wife is residing in her parents house at Tumakuru and she has got a minor child, aged about seven years. The petitioner does not have any independent source of income and she is totally dependant on the parents for her livelihood. Thus, it is evident that the petitioner cannot afford to come to Gowribidanur to attend the court proceedings because of the financial difficulty. In addition to that, she has to look after her minor child. As such, she would put to inconvenience and hardship in attending the Court proceedings at Gowribidanur.
11. In the facts and circumstances of the case, there are valid ground to grant a relief as claimed. Accordingly, civil petition is allowed. M.C.No.17/2017 pending before the Senior Civil Judge and J.M.F.C., Gowribidanur, is ordered to be transferred to the Principal Judge, Family Court, Tumakuru.
Registry is directed to send intimation to concerned Courts through transmission of records.
I.A.No.1/2018 for stay does not survive for consideration, the same is accordingly disposed of.
Sd/- JUDGE rv