Telangana High Court
Smt. Chintapalli Deepika Jevvji ... vs Vamshi Krishna Chintapalli on 20 October, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
Tr.C.M.P.Nos.199 and 202 of 2022
COMMON ORDER:
Transfer Civil Miscellaneous Petition (Tr.CMP) No.199 of 2022 is filed under Section 24 of the Civil Procedure Code, 1908 (for short 'C.P.C.') by the petitioner/wife with a prayer for withdrawal of GWOP No.2 of 2022 pending on the file of the Additional District Judge, Khammam and to transfer the same to the Judge, Family Court at City Civil Court, Hyerabad. Whereas, Tr.CMP No.202 of 2022 is filed by the petitioner/wife for withdrawal of HMOP No.08 of 2022 pending on the file of the Senior Civil Judge at Khammam and to transfer the same to the Judge, Family Court at City Civil Court, Hyderabad.
2. Both the transfer petitions are between the same parties and in both the cases, the petitioner/wife has requested for transfer of GWOP and HMOP pending before the Courts at Khammam to be withdrawn and transferred to the Judge, Family Court at City Civil Court, Hyderabad. Accordingly, it is proposed to dispose of both the transfer petitions through this common order.
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AVRJ Tr.CMP Nos.199 & 202 of 2022
3. The main averments of the affidavits filed in support of the transfer petitions are that the petitioner is a legally wedded wife of the respondent/husband and their marriage was solemnized on 31.10.2013. Out of the wedlock, she begot a baby boy on 29.12.2015 and in due course, she was subjected to mental and physical harassment. She was again conceived and gave birth to a female child on 31.08.2020 at her parents' house. The respondent did not turn up to take her back, as such she is constrained to stay back with her parents. The respondent has filed HMOP No.8 of 2022 before the Senior Civil Judge at Khammam for dissolution of marriage with false allegations. He has also filed GWOP No.2 of 2022 on the file of the Principal District Judge at Khammam for custody of the minor children and the respondent is fully aware that the minor children along with the petitioner are residing at Hyderabad, but intentionally filed GWOP No.2 of 2022 at Khammam to harass the petitioner and accordingly prayed for withdrawal of GWOP No.2 of 2022 pending on the file of the District Judge, Khammam and HMOP No.8 of 2022 pending on the file of the Senior Civil Page 3 of 10 AVRJ Tr.CMP Nos.199 & 202 of 2022 Judge, Khammam and to transfer both the matters to the learned Judge, Family Court at City Civil Court at Hyderabad for disposal in accordance with law.
4. Despite granting ample opportunity, the respondent/ husband having engaged a counsel failed to file any counter. Heard the learned counsel for the petitioner/wife and the respondent/husband. The submissions made on either side have received due consideration of this Court.
5. The learned counsel for the transfer petitioner in both the transfer petitions would submit that the petitioner along with her minor children aged about six years and 15 months respectively staying with her parents at Hyderabad and in proof of the same, she has filed rental agreement. It is further submitted that it is causing lot of difficulty for the petitioner to commute along with her minor children from Hyderabad to Khammam on each and every date of hearing to attend both the cases and that the respondent intentionally filed GWOP before the Court at Khammam, though he is aware of the fact that the minor children are living with the petitioner at Hyderabad and requested for Page 4 of 10 AVRJ Tr.CMP Nos.199 & 202 of 2022 withdrawal of both the cases pending before the Courts at Khammam and to transfer the same to the learned Judge, Family Court at City Civil Court, Hyderabad.
6. Per contra, the learned counsel for the respondent/ husband would submit that both the petitioner and the respondent are employees at Bangalore, parents of the respondent are living at Khammam and it would be convenient for them to attend the cases at Khammam, and that the rental agreement filed by the petitioner does not contain the required details. In fact, as on the date of filing of GWOP, the petitioner was also living at Khammam and accordingly GWOP was filed at Khammam seeking the custody of children and prayed for dismissal of the Tr.CMP.
7. The admitted or undisputed facts are that the petitioner is the legally wedded wife of the respondent, their marriage was consummated and out of the wedlock, she gave birth to two children, their elder son is aged about 6 years and the daughter is aged about 15 months and that they are living with their mother at Hyderabad. Though the respondent has alleged that at the time of filing of GWOP Page 5 of 10 AVRJ Tr.CMP Nos.199 & 202 of 2022 No.2 of 2022 the petitioner was residing with her parents at Khammam, to that effect no proof is filed, whereas the petitioner has filed rental agreement dated 23.04.2022 to show that she is a tenant in the house of Mrs. M. Swetha, house bearing No.6-1-585/B/1, III Floor consisting of two bed room portion, Maruthinagar, Khairtabad, Hyderabad. Though it is alleged by the respondent that the petitioner and the respondent are working as software employees at Bangalore, no such proof is filed by the respondent to that effect.
8. On the other hand, in the cause title of GWOP No.2 of 2022, the address is shown as Vijayawada of Krishna District, whereas the address of the petitioner herein is shown as Khammam District. Similarly, in HMOP No.8 of 2021, the address of the respondent herein is shown as Vijayawada of Krishna District and the address of the petitioner herein is shown as Khammam District. Thus, the respondent having alleged that himself and the petitioner herein are working as software employees at Bangalore, failed to establish the same. On the other hand, the petitioner herein has filed the rental agreement to show Page 6 of 10 AVRJ Tr.CMP Nos.199 & 202 of 2022 that she is living at Hyderabad along with her two minor children. May be her parents are residing at Khammam, but that by itself is not sufficient to hold that the petitioner is also living with her parents at Khammam.
9. The respondent has not filed any counter and his only objection is that at the time of filing of GWOP No.2 of 2022, the petitioner was residing at Khammam with her parents and accordingly GWOP was filed before the jurisdictional court at Khammam seeking custody of the minor children, but the petitioner has pleaded that she has been living at Hyderabad and that she was deserted by the respondent since October 2020 and she is taking care of her minor children including providing education to her son at Hyderabad.
10. The petitioner is young lady. She along with her two minor children are living separately from her husband. It may be stated that the respondent/husband has resisted the Tr.CMPs only on the ground that at the time of filing GWOP, the petitioner was living at Khammam with her parents, subsequently, she has shifted to Hyderabad, but Page 7 of 10 AVRJ Tr.CMP Nos.199 & 202 of 2022 he has not filed any proof of her staying at Khammam during the relevant period. The parties are Hindus governed by the Hindu Marriage Act, 1955. Section 19
(iii)(a) of the Hindu Marriage Act provides that the wife is entitled to prosecute the matrimonial disputes before the jurisdictional court where she is living after she started living separately from her husband or she was deserted by her husband.
11. In Sangeetha alias Shreya v. Prasant Vijay Wargiya1 the Hon'ble Apex Court has held that while considering the transfer petitions, the convenience of the wife and minor children must prevail when compared to the convenience of the husband.
12. In N.C.V. Aishwarya v. A.S. Saravana Karthik Sha2 the Supreme Court while dealing with the similar facts held that the applicant/wife who is young lady aged about 21 years staying alone along with her aged parents, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case filed by the 1 2004 (13) SCC 407 2 2022 Live Law (SC) 627 Page 8 of 10 AVRJ Tr.CMP Nos.199 & 202 of 2022 respondent/husband seeking annulment of marriage, accordingly, considering the convenience of the wife transferred the matter from the Family Court, Vellore to the jurisdictional Family Court at Chennai.
13. The Apex Court further held that the cardinal principle for exercise of power under Section 24 of C.P.C. is that ends of justice should demand the transfer of the suit, appeal or other proceedings and in matrimonial disputes whenever courts are called upon to consider the plea of transfer, the courts have to take into consideration the social strata of the spouses, their behavioural pattern, their standard of life prior to marriage and subsequent thereto and circumstances under which both the parties are eking out their livelihood and under whose protective umbrella they are seeking their sustenance and that given the prevailing socio economic paradigm in the Indian society generally it is the wife's convenience which must be looked into at while considering the transfer application.
14. Reverting back to the facts of the case on hand, the petitioner/wife is able to establish that she along with her Page 9 of 10 AVRJ Tr.CMP Nos.199 & 202 of 2022 minor children are living at Hyderabad and it is causing lot of inconvenience for her to commute from Hyderabad to Khammam on each and every date of hearing in both the GWOP and HMOP before the Courts at Khammam. As per Section 19 (iii)(a) of the Hindu Marriage Act, wife is entitled to prosecute the matrimonial disputes from the place where she is living and she is able to establish that she along with her minor children are living at Hyderabad. Therefore, in that view of the matter, considering the principles laid in the above decisions, the scheme of Hindu Marriage Act and the provisions of the Guardians and Wards Act, 1890, I find justification in the request of the petitioner/wife for withdrawal of GWOP No.2 of 2022 pending on the file of the District Judge, Khammam and HMOP No.8 of 2022 pending on the file of the Senior Civil Judge, Khammam and to transfer both the matters to the Judge, Family Court at City Civil Court at Hyderabad for disposal in accordance with law.
15. In the result, both the Transfer Civil Miscellaneous Petitions are allowed. GWOP No.2 of 2022 pending on the file of the District Judge, Khammam is ordered to be Page 10 of 10 AVRJ Tr.CMP Nos.199 & 202 of 2022 withdrawn and transferred to the file of the Judge, Principal Family Court at City Civil Court, Hyderabad. Similarly, HMOP No.8 of 2022 pending on the file of the Senior Civil Judge at Khammam is ordered to be withdrawn and transferred to the Judge, Principal Family Court at City Civil Court, Hyderabad for disposal in accordance with law. The learned District Judge, Khammam and the learned Senior Civil Judge, Khammam shall transmit the entire record in GWOP No.2 of 2022 and HMOP No.8 of 2022 respectively, duly indexed within one month from the date of receipt of copy of this order. However, there shall be no order as to costs.
As a sequel, interlocutory applications, if any pending in these Tr.CMPs shall stand closed.
__________________________________ A. VENKATESHWARA REDDY, J.
Date: 20.10.2022 Isn