IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CIVIL PETITION NO.126/2018 BETWEEN:
SMT. SUJATH FATHIMA W/O SRI MOHAMED ANSAR @ ANANYA D., D/O SRI C.B.RASOOL KHAN, AGED ABOUT 34 YEARS, MUTTON MERCHANT, 7TH CROSS, VIJAYAPURA LAYOUT, CHIKAMAGALUR-577 527.
(BY SRI. A.MADHUSUDHANA RAO, ADVOCATE) AND:
SRI MOHAMED ANSAR @ ANANYA D., S/O SRI MOHAMMED YASIN @ N.DHARMARAJ, R/AT 13/1, 20TH ‘B’ MAIN, 5TH PHASE, S.M.S. LAYOUT, J.P.NAGAR, BENGALURU-560 076. ALSO AT:
2ND CROSS, VIJAYANAGAR, D.M.HALLI, HASSAN TOWN.
… PETITIONER … RESPONDENT (BY SMT. MANJULA P.V., ADVOCATE FOR SRI D.C.DEEPAK & SMT. SEEMA PARVEEN, ADVOCATES) - - -
THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING TO TRANSFER O.S.NO.01/2018 FILED BY THE RESPONDENT AGAINST THE PETITIONER WHICH IS PENDING IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT, HASSAN, TO PRINCIPAL JUDGE, FAMILY COURT AT CHICKMAGALUR AND ALLOW THIS PETITION WITH COST AND GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT DEEMS FIT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri. A. Madhusudhana Rao, learned counsel for the petitioner.
Smt. Manjula P.V., learned counsel for the respondent.
2. The Petition is admitted for hearing. With the consent of the parties, the same is heard finally.
3. In this petition filed under Section 24 of the Civil Procedure Code, 1908, the petitioner-wife, seeks transfer of O.S.No.1/2018 filed by the respondent-husband pending before the Principal Judge, Family Court, Hassan to the court of Principal Judge, Family Court, Chikkamagalur.
4. When the matter is taken up for hearing, the learned counsel for petitioner submits that the petitioner has filed a suit for injunction which is pending, in which interim injunction has already been granted. The aforesaid civil suit is pending before the II Additional Civil Judge & JMFC, Chikmagalur. Further, the respondent/husband has filed a suit in O.S.No.1/2018 for declaration in the court of the Principal Judge, Family Court, Hassan. It is further submitted that in order to avoid possibility of conflicting judgment, it is necessary to transfer the proceeding instituted by the respondent/husband to the court of competent jurisdiction at Chikmagalur. It is further submitted hat the petitioner is not employed. The petitioner has to take care of her child born out of the wedlock and she is financially dependent on her parents.
5. The learned counsel for respondent has not opposed for transfer of suit from the court of Principal Judge, Family Court, Hassan to the court of Principal Judge, Family Court, Chikkamagalur.
6. I have considered the submissions made by the learned counsel for the petitioner and have perused the record.
7. 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, the 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.
8. In view of the enunciation of law by the Supreme Court and taking into account the facts of the case, I deem it appropriate to direct transfer of the proceedings instituted by the respondent from Hassan to Chikmagalur.
9. Accordingly, it is directed that the proceedings instituted by the respondent in O.S.No.1/2018 pending on the file of Principal Judge, Family Court, Hassan shall be transferred to the court of competent jurisdiction at Chikmagalur.
10. Accordingly, the petition is allowed.
Sd/- JUDGE Np/-