Andhra Pradesh High Court - Amravati
Borigarla Alias Dongala Yamini vs Borigirla Nagaraju on 23 February, 2022
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
Tr.C.M.P. No.265 of 2019
Order:
This Tr.C.M.P. is filed seeking transfer of FCOP No.1308 of 2019 on
the file of the Family Court, at Visakhapatnam to the Family Court, Guntur
to adjudicate the matter along with FCOP No.76 of 2019 pending before
the Family Court, at Guntur.
The case of the petitioner is that she was married to the
respondent on 25.11.2016 at Guntur; during their wedlock they were
blessed with one male child; respondent is addicted to bad vices and started harassing the petitioner; respondent used to beat the petitioner indiscriminately; having no other go, petitioner came to her parents house and residing therein; when the respondent and his parents came to the house of the petitioner and demanded dowry of Rs.2,00,000/-, petitioner gave a complaint before Women Police Station, which was registered as Crime No.24 of 2019 under Sections 498-A and 506 IPC and the same was numbered as CC No.926 of 2019 on the file of the Judicial Magistrate of First Class for Excise, Guntur; she also filed DVC No.61 of 2019 before the Special Mobile Judicial Magistrate of First Class, Guntur and FCOP No.76 of 2019 before the Family Court, Guntur seeking maintenance; respondent filed FCOP No.1308 of 2019 before the Family Court, Visakhapatnam under Section 13(1)(ia) of the Hindu Marriage Act seeking dissolution of marriage and another case in FCOP No.215 of 2019 before the Family Court, Guntur under Section 9 of Hindu Marriage Act for restitution of conjugal rights; petitioner is having two years child and is unable to attend the Court at Visakhapatnam; the distance between Guntur and Visakhapatnam is more than 500 kms; respondent filed FCOP No.215 of 2 2019 before the Family Court, Guntur and he filed FCOP No.1308 of 2019 before the Family Court at Visakhapatnam only to harass the petitioner. As the distance is more, as she is not having any male assistance and as she is having a small child, petitioner is unable to attend the Court at Visakhapatnam; hence, the present Tr.CMP.
When the Tr.CMP came up for admission on 17.12.2019, this Court granted interim stay of all further proceedings in FCOP No.1308 of 2019 on the file of the Family Court, Visakhapatnam until further orders.
Respondent filed counter affidavit along with vacate stay petition denying the allegations made by the petitioner in the Tr.CMP., and that divorce petition cannot be clubbed with maintenance case.
Heard learned counsel for the petitioner and learned counsel for the respondent.
The number of divorce and related matters are increasing day by day for various reasons and in such matters both the spouses may face genuine difficulties. The spouse against whom the transfer proceeding is instituted would face hardship and inconvenience by being required to commute to a distant court, while the spouse who has instituted the original proceeding may genuinely suffer grave inconvenience if the proceeding is transferred to a distant court within whose jurisdiction the other spouse resides. Hence, the transfer matters have to be decided basing on the facts of each case.
In Bhuwan Mohan Singh v. Meena1, the Hon'ble Supreme Court referred to the decision in 'K.A. Abdul Jaleel vs. T.A.Shahida2 and laid stress on securing speedy settlement of disputes relating to marriage and family affairs. The Hon'ble Supreme Court in the said case held as follows: 1
'((2015) 6 SCC 353 2 '(2003) 4 SCC 166 3 "It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow."
In Shamima Farooqui v. Shahid Khan3, the Hon'ble Supreme Court held as follows:
"When the aforesaid anguish was expressed, the predicament was not expected to be removed with any kind of magic. However, the fact remains, these litigations can really corrode the human relationship not only today but will also have the impact for years to come and has the potentiality to take a toll on the society. It occurs either due to the uncontrolled design of the parties or the 3 '(2015) 5 SCC 705 4 lethargy and apathy shown by the Judges who man the Family Courts. As far as the first aspect is concerned, it is the duty of the courts to curtail them. There need not be hurry but procrastination should not be manifest, reflecting the attitude of the court. As regards the second facet, it is the duty of the court to have the complete control over the proceeding and not permit the lis to swim the unpredictable grand river of time without knowing when shall it land on the shores or take shelter in a corner tree that stands "still" on some unknown bank of the river. It cannot allow it to sing the song of the brook. "Men may come and men may go, but I go on forever." This would be the greatest tragedy that can happen to the adjudicating system which is required to deal with most sensitive matters between the man and wife or other family members relating to matrimonial and domestic affairs. There has to be a proactive approach in this regard and the said approach should be instilled in the Family Court Judges by the Judicial Academies functioning under the High Courts. For the present, we say no more."
In Vandana Sharma v. Rakesh Kumar Sharma4, the Hon'ble Supreme Court taking note of the fact that the wife had two minor daughters and appreciating the difficulty, thought it appropriate to transfer the case.
In Neelam Bhatia vs. Satbir Singh Bhatia5, the Hon'ble Supreme Court, when the wife sought transfer of a case and husband resisted the petition stating that the case is at the stage of evidence and pleadings were also completed, declined to transfer the case and directed the husband to bear the to-and-fro travelling expenses of the wife and one person accompanying her by train whenever she actually appeared 4 '(2008) 11 SCC 768 5 '(2004) 13 SCC 436 5 before the Court. The Hon'ble Supreme Court also directed payment of incidental expenses on the date of hearing in addition to the train fare.
In Sumita Singh Vs. Kumar Sanjay6, when the wife sought transfer of a case filed by the husband on the ground that she is unable to travel up and down from Delhi to Ara, to defend the matrimonial proceedings and that she has no one with whom she can stay in Ara because her parents are residents of Gurgaon; even though wife is an educated woman and doing very well and husband is unemployed Hon'ble Supreme Court held that it is the wife's convenience that must be looked at and the circumstances indicated are sufficient to allow the transfer petition.
In Sangeeta Alias Shreya vs. Prasant Vijay Wargiya7, wife filed transfer petition on the ground that she has 2½ years old child, that she has no source of income, and that the wife is not in a position to travel alone. The husband therein took a plea that he has no income and he is apprehending threats to his life and liberty if he is made to go to Kota, Rajasthan, the place where wife is seeking transfer of matrimonial case. In the said case the Hon'ble Supreme Court held 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 he attends the Court at Kota and if any threat is given, the respondent can always complaint to that Court and we are sure that his, 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 2½ years old child".6
(2001) 10 SCC 41 7 2004 13 SCC 407 6 As seen from the pleadings, petitioner is having two years old child and unable to attend the Court at Visakhapatnam. The distance between Guntur and Visakhapatnam is more than 500 kms. Petitioner submitted that she does not have any male assistance and she is unable to attend the Court at Visakhapatnam.
In view of the facts and circumstances of the case and in the light of the above referred judgments of the Hon'ble Supreme Court, the Tr.CMP is allowed and FCOP No.1308 of 2019 pending on the file of the Judge, Family Court, Visakhapatnam is transferred to the Family Judge Court, Guntur to be tried along with FCOP No.76 of 2019. The trial Court is directed not to insist upon the appearance of the respondent on every adjournment except on the dates when his appearance is necessary for disposal of the case. There shall be no order as to costs.
As a sequel thereto, the miscellaneous applications, if any, pending in this Tr.CMP shall stand closed.
_____________________________ KONGARA VIJAYA LAKSHMI, J Date:23.02.2022 Nsr 7 HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI Tr.C.M.P.No.265 of 2019 Date:23.02.2022 Nsr