IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL PETITION NO.197 OF 2018 BETWEEN:
Smt Shwetha W/o Venkatesh H.T, C/o Lokesh-Father Aged about 32 years, Jog Road, Beside Thirumala Bar, Sagar Town-577401, Shivamogga District ... Petitioner (By Sri Pruthvi Wodeyar, Advocate) AND:
Sri Venkatesh H.T S/o Late Thimmegowda, Aged about 37 years, Hottigana Hosahalli Grama, Chakkare Post, Malur Hobli, Channapatna Taluk, Ramanagara District-562160 ... Respondent (By Sri T.Rajaram, Advocate) This Civil Petition is filed under Sec.24 of CPC praying to i) Transfer the M.C.No.21/2018 pending on the file of the Senior Civil Judge and JMFC Channapatna to the Senior Civil Judge at Sagar. 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, arguments are heard on merits and 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.21/2018 pending on the file of Senior Civil Judge and JMFC at Channapatna to the Senior Principal Civil Judge and JMFC, Sagar.
3. The petitioner is legally wedded wife of the respondent. They were married on 24.11.2016 at Bangalore. Out of wed lock, she gave birth to a male child, which is three months old as on the date of filing the petition. Due to matrimonial disputes and other complications, the petitioner and respondent could not lead marital life together. On account of harassment done by the respondent-husband and his family members, the petitioner was compelled to leave the matrimonial house. At present, she is residing in her parents’ house along with her minor child. Petitioner has filed a petition against her husband seeking divorce before the Principal Senior Civil Judge and JMFC, Sagar, which is numbered as Misc. Petition No.43/2018. Thereafter, respondent- husband has filed a petition for restitution of conjugal rights, which is numbered as M.C.No.21/2018 which is pending on the file of Senior Civil Judge and JMFC, Channapatna. On account of financial difficulty, the petitioner was fully dependent on her parents in addition to that she has to look after her minor child. Thus, she is finding difficulty to attend the Court proceedings before the Court of Senior Civil Judge and JMFC, Channapatna. The distance between Sagar to Channapatna is 450 Kms. The petitioner cannot afford to bear traveling expenses to attend the Court proceedings in M.C.No.21/2018. If the petition is transferred to the Court of Principal Senior Civil Judge and JMFC, Sagar, she can conveniently attend the Court proceedings and defend her case.
4. During the course of the arguments, learned counsel for the petitioner submitted that petitioner-wife does not have any independent source of income and she has to look after her minor child. Thus, petitioner- wife would be put to great hardship. In addition to that, the petitioner has also filed a petition for divorce. In these circumstances, both petitions are required to be heard and decided together in order to avoid conflicting decisions.
5. Per Contra, learned counsel for the respondent strenuously submitted that the petition is filed by making frivolous allegations about the harassment made by the respondent-husband and other family members. There are no valid grounds for transfer of the petition. The respondent-husband is also ready and willing to bear the traveling expenses of the petitioner for attending the Court proceedings at Channapatna. 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.21/2018 pending on the file of Senior Civil Judge and JMFC at Channapatna to the Senior Principal Civil Judge and JMFC, Sagar.
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. As could be seen from the records, petitioner has filed Misc.Petition No.43/2018 before the Court of Senior Principal Civil Judge and JMFC, Sagar. Thereafter, the respondent-husband has filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, which is numbered as M.C.No.21/2018, wherein, in the cause title the address of the petitioner-wife is shown as the resident of Sagar Town, Shivamogga.
11. In the instant case, it is an admitted fact that Sagar is far away from Channapatna. The petitioner is having a minor child, who is aged about one year three months old. Under these circumstances, the petitioner-wife would be put to great hardship.
12. 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.21/2018, is pending on the file of Senior civil Judge and JMFC, Channapatna, is ordered to be transferred to the Senior Principal Civil Judge and JMFC, Sagar.
Registry is directed to issue intimation to concerned Court for transmission of records.
Sd/- JUDGE rv