THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI
Transfer C.M.P.No.278 of 2014
ORDER:
This is an application under Section 24 of the Code of Civil Procedure by the petitioner-wife requesting to withdraw O.P.No.12 of 2013 pending on the file of the learned VII Additional District Judge-cum- Family Court, West Godavari, Eluru and transfer the same to the file of the Principal Senior Civil Judge’s Court, at Tanuku, for trial and disposal, in accordance with the procedure established by law.
2. The case of the petitioner, which is relevant for consideration, is this: “The marriage of the parties was performed on 12.12.2006. Under the lawful wedlock, the petitioner gave birth to a girl child and the child is now 3 ½ years old. After the marriage, the parties lived happily for some period; later disputes had arisen; and the disputes had led to estrangement between the parties. After she was necked out from the house, she had made several attempts to join the respondent. But the respondent did not allow her to join him. She had filed a criminal complaint against the respondent and a case in Crime No.71 of 2013 was registered by the Station House Officer, Tanuku Police Station. She had also filed a maintenance case in M.C.No.20 of 2014 and a domestic violence case on the file of the learned Judicial Magistrate of First Class, Tanuku. The respondent is appearing in those matters and is contesting those cases. While so, the respondent had filed a petition in O.P.No.5 of 2013 with false allegations on the file of the VII Additional District Judge- cum-Family Court, West Godavari District at Eluru for grant of divorce. The petitioner is now staying with her parents at Tanuku. She is having a three and half year old child. She is not in a position to undertake travel along with the child by spending Rs.500/- towards travel and other expenses for attending the Court case at Eluru. She has no sources of income and means to defend the case at Eluru. It is also unsafe for her to go to Eluru of West Godavari and oppose the OP filed by the respondent-husband in the Family court at Eluru. If the case pending in the Court at Eluru is transferred to the Senior Civil Judge’s Court at Tanuku, no prejudice would be caused as the respondent is already attending the cases pending in the Courts at Tanuku. As per the settled law, the convenience of the petitioner, who is a destitute woman, should prevail while considering the transfer of a matrimonial case. Hence, it is just and fair to grant the relief.”
3. The husband/respondent while denying the material averments in the petition of the petitioner/wife had inter alia contended as follows: “The transfer petition is purposefully filed to procrastinate the matter. When this respondent is visiting Tanuku to attend the criminal cases filed by the wife, he is taking the assistance of his relatives; and prior intimation is being given to the police, as the relatives and parents of the petitioner- wife are hatching a conspiracy to liquidate the respondent. The respondent had also reported the matter to the local police seeking protection of his life. The parents of the petitioner had tried in vain to attack the respondent and his parents with the help of Goondas on at least five occasions. The respondent apprehends grave danger to his life, whenever he visits Tanuku. He is contemplating to file Transfer Petition seeking transfer of D.V.C.No.51 of 2013 and M.C.No.20 of 2014 from the Courts at Tanuku to the Courts at Eluru as it is very dangerous for him to visit Tanuku as the parents and the relatives of the petitioner are very ferocious and are hell bent upon liquidating him. On account of her past character, the petitioner is not at all interested in leading a marital life with the respondent. There is no security for the life of the respondent at Tanuku and in case the O.P. is transferred to Tanuku, he cannot pursue the case diligently. The case filed at Tanuku is one for restitution of conjugal rights. The petitioner can invoke the provisions under the Hindu Marriage Act and make a claim for meeting the litigation expenses. Therefore, there is absolutely no necessity for transfer of the case. Hence, the petition may be dismissed.”
4. I have heard the submissions of the learned counsel for both the sides. I have Perused the material record.
5. Now the point for determination is:
“Whether the petitioner/wife had made out valid and sufficient grounds for withdrawal of O.P.No.12 of 2013 on the file of the VII Additional District Judge-cum- Family court, Eluru of West Godavari and transfer the same to the file of the Court of the learned Principal Senior Civil Judge, at Tanuku?”
6. POINT:
6. (a) The relevant facts and the cases pleaded by both the parties are already stated supra. The marriage of the parties was performed on 12.12.2006. They had resided together for some period and thereafter, there was estrangement. The petitioner is now residing at Tanuku, which is her parents’ place. Under the lawful wedlock, the petitioner gave birth to a girl child and the child is now 3 ½ years old. She is a housewife. According to her, she is not having any sources of income; and she has no means to spend money; she is not in a position to undertake travel, along with a child, to Eluru, which is a distant place to attend before the Court on the dates of every adjournment of the O.P. filed by the husband; further, there is life threat to her at Eluru and therefore, it is not safe for her to go to Family court at Eluru and contest the O.P filed by the respondent; there is nobody to accompany her and her child to Eluru for attending the Court case at Eluru. It is her further case, that the respondent is attending the cases filed by the petitioner in the Courts at Tanuku and that therefore, no prejudice would be caused to him, if the case in O.P.No.5 of 2013 on the file of the Additional District Judge-cum- Family Court, Eluru of West Godavari is transferred to the file of the Court of the learned Senior Civil Judge, Tanuku of West Godavari.
6. (b) On the other hand, the main contentions of the respondent are as follows: “The transfer petition is purposefully filed to procrastinate the matter. The parents of the petitioner had tried in vain to attack the respondent and his parents with the help of Goondas on at least five occasions. He apprehends danger to his life during his visits to Tanuku. He is contemplating to file Transfer Petition seeking transfer of the domestic violence case and maintenance case to Eluru, as it is very unsafe for him to visit Tanuku as the parents and the relatives of the petitioner are very ferocious and are hell bent upon liquidating him. If the case is transferred from Eluru to Tanuku, the respondent cannot pursue his petition diligently on account of insecurity to his life at Tanuku. The case is one filed under Section 9 of the Hindu Marriage Act and therefore, there is no need to transfer the case. The petitioner can invoke the provisions under the Hindu Marriage Act and make a claim for meeting the litigation expenses.”
6. (c) I have bestowed my attention to the facts and the submissions of the learned counsel for both the sides. Both the parties pleaded that they apprehend threat to their lives at the respective places of the opposite parties. The respondent/husband is mainly opposing the request for transfer of the case on the ground that there is a threat to his life at the hands of the relatives and the parents of the petitioner, who are ferocious and that it is unsafe for him to go to Tanuku. Further, the wife’s grounds for transfer of the case are that she has a three and half year old child and that she has no source of income and that she is not in a position to undertake travel along with the child and that there is no male assistance to accompany her to undertake travel from Tanuku to Eluru to attend the Court case filed by the husband in the Court at Eluru. In the light of the aforementioned contentions and in the totality of the circumstances of the case, it is clear that the inconvenience caused to the wife to travel to Eluru to attend to the case would outweigh the inconvenience, if any, caused to the husband. The paramount consideration which must weigh with this Court is the interest of the 3 ½ year old daughter and the trauma that would be caused to the tender mind and health of the child by the frequent travel, if the child accompanies her mother or by prolonged separation from the mother, in case the mother alone frequently under takes travel unaccompanied by the child. Further, Section 19 of the Hindu Marriage Act, 1955 was amended in the year 2003, whereby clause (iiia) was inserted therein, reserving liberty to the wife to file a petition under the Act of 1955 before the court within the local limits of whose ordinary original civil jurisdiction she is residing on the date of presentation of the petition. This statutory provision clearly signifies that the convenience of the wife has been given an exceptional importance insofar as the place of suing is concerned. Further, in the decision in Sangeeta v. Prasant Vijay
[1]
Wargiya , the respondent/husband while opposing the transfer application of the wife for transfer of the case, inter alia contended that he apprehends danger to his life and liberty, in case, he was made to go to Kota, Rajasthan. In the said cited case the Hon’ble Supreme Court having considered the contentions of both the sides had observed as follows:
“We are still living in a civilised society. We see no substance in the submission that there would be danger to his life if the respondent has to attend the court in Kota. If any threat is given, the respondent can always complain to that court and we are sure that his complaint, if one made, will be considered on its merit. Between a husband and a wife the convenience of the wife must prevail particularly when the wife has a 2 ½ year old child”.
The ratio in the cited decision squarely applies to the facts of the present case. This Court is of the opinion that sufficient grounds are made out on facts and in law to accept the plea of the wife for transfer of the case filed by the respondent/husband, as prayed for.
7. In the result, the petition is allowed and the O.P.No.12 of 2013 on the file of VII Additional District Judge-cum-Family Court, West Godavari at Eluru is withdrawn from the file of the said Court and is transferred to the file of the Court of the learned Principal Senior Civil Judge, at Tanuku for trial and disposal, in accordance with the procedure established by law. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this TRCMP shall stand closed.
M.SEETHARAMA MURTI, J 20th September 2014 RAR
[1] (2004) 13 Supreme Court Cases 407