Telangana High Court
Irugu Madhavi vs Irugu Tarun Kumar on 19 October, 2022
THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
TRANSFER CIVIL MISCELLANEOUS PETITION
NO.190 OF 2022
ORDER :
The petitioner/wife has filed this Transfer Civil Miscellaneous Petition under Section 24 of Civil Procedure Code (for short 'CPC') with a prayer for withdrawal of HMOP No.12 of 2022, pending on the file of the Principal District Judge-cum- Judge, Family Court at Nalgonda and to transfer the same to the Court of the Principal District and Sessions Judge-cum-Judge, Family Court, Medchal-Malkajgiri District at Malkajgiri. Subsequently, I.A.No.2 of 2022 is filed by the petitioner with a prayer to amend the nomenclature of original petition as O.P. only instead of H.M.O.P. and the name of the Court as Principal District Judge instead of Principal District Judge-cum-Family Court. I.A.No.2 of 2022 is allowed vide separate order and accordingly, hereinafter referred to as O.P.No.12 of 2022 instead of H.M.O.P.No.12 of 2022 and Principal District and Sessions Judge instead of Principal District and Sessions Judge-cum- Family Court.
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2. The main averments of the supporting affidavit filed by the petitioner / wife are that she is the legally wedded wife of the respondent, their marriage was solemnized on 02.05.2013 at Arya Samaj, Chengicherla, Ghatkesar as per Hindu rites and customs, the marriage was consummated, she gave birth to twin boys on 28.07.2016 but unfortunately both the twins died and again she gave birth to a female child on 10.10.2018 and thereafter disputes arose, she was necked out by her husband and in-laws, the respondent used to come to the house in a drunken state and used to harass her with a demand for additional dowry, she was constrained to file O.P.No.949 of 2022 for restitution of conjugal rights and also filed D.V.C.No.63 of 2021 and C.C.No.663 of 2021 for the offence under Section 498-
A of Indian Penal Code (for short 'IPC') and both the these cases are pending on the file of the learned III Additional Metropolitan Magistrate, Malkajgiri. In the meanwhile, the respondent has filed O.P.No.12 of 2022 before the Principal District Judge at Nalgonda under Section 10(1)(IX) and 10(1)(X) of Indian Divorce Act, 1869. The petitioner has received notices and caused appearance. It is causing lot of inconvenience to her to commute from her native place Rampally, Ghatkesar to AVR,J Tr.CMP_190_2022 : Page No.3 of 12:
Nalgonda all the way travelling more than 135 K.M. Accordingly, the petitioner prayed for withdrawal of O.P.No.12 of 2022, pending on the file of the Principal District Judge, Nalgonda and to transfer the same to the Court of the Judge, Family Court at Malkajgiri for disposal in accordance with law.
3. This application is resisted by the respondent/ husband, who filed a detailed counter. The main averments of the said counter are that paragraph Nos.1 to 7 of the affidavit filed by the petitioner does not require any specific denial, however, the fact remains is that the disputes arose between the parties in the year 2016 and the respondent has made several attempts to take back the petitioner to his conjugal society but there was no co-operation from the petitioner, he waited for many years with a hope that she would change her attitude and understand the value and relationship but in vain. Having exhausted all possible ways, the respondent has filed an application for divorce vide O.P.No.12 of 2022 on the file of the Principal District Judge, Nalgonda under Section 10(1)(IX) and 10(1)(X) of Indian Divorce Act, 1869. The respondent has also AVR,J Tr.CMP_190_2022 : Page No.4 of 12:
placed reliance on several decisions and prayed for dismissal of the application.
4. Heard learned counsel on both sides. The submissions made on either side have received due consideration of this Court.
5. Learned counsel for the petitioner would submit that it is causing lot of inconvenience to the petitioner to travel from her native place to the District Court at Nalgonda on each and every date of hearing and that O.P.No.949 of 2022, filed by her for restitution of conjugal rights and M.C.No.189 of 2022 for grant of maintenance are pending on the file of the Judge, Family Court, Malkajgiri. In both the matters the respondent / husband is appearing. Apart from it, the respondent is also appearing in criminal cases in C.C.No.663 of 2021 and D.V.C. No.63 of 2021, pending on the file of the learned III Additional Metropolitan Magistrate, Malkajgir. Thus, in all, four cases are pending before the Courts at Malkajgiri. Whereas, the petitioner / wife is attending O.P.No.12 of 2022, filed by the respondent, before the Principal District Judge at Nalgonda. If this case is AVR,J Tr.CMP_190_2022 : Page No.5 of 12:
transferred to Malkajgiri, it would be convenient to both the parties.
6. Per contra, learned counsel for the respondent / husband would submit that there are no merits in the claim of the petitioner, she does not deserve any lenience, she is trying to misuse the provisions of Section 24 of CPC, merely because the petitioner is a lady, it does not mean that she could not travel to another place and that the respondent/husband is offering to pay boarding and lodging expenses and travelling expenditure for the wife whenever her presence is required before the Court at Nalgonda. Accordingly, relied on the principles laid in the following decisions:
(1) Anindita Das Vs. Srijit Das1.
(2) Preeti Sharma Vs.Manjit Sharma2
(3) Gayatri Mohapatra Vs.Ashit Kumar Panda3
(4) Teena Chhabra Vs. Manish Chhabra4
(5) Kanagalakshmi Vs.A.Venkatesan5
(6) Neelam Bhatia Vs.Satbir Singh Bhatia6
7. Admitted or undisputed facts of the case are that the petitioner is the legally wedded wife of the respondent, their 1 (2006) 9 SCC 197 2 MANU/SCOR/00025/2005 3 (2003) 11 SCC 731 4 (2004) 13 SCC 411 5 MANU/SCOR/00038/2004 6 MANU/SC/1340/2004 AVR,J Tr.CMP_190_2022 : Page No.6 of 12:
marriage was solemnized on 02.05.2013, they were blessed with twins on 28.07.2016, disputes arose between the parties, thereafter, the petitioner again conceived and gave birth to a female child on 10.10.2018 and these circumstances made her to leave the matrimonial society of her husband. Whereas, the contention of the respondent / husband is that he tried his best to take back the petitioner to his conjugal society and waited for many years and having lost hope, he is forced to file a petition seeking divorce in O.P.No.12 of 2022 before the Principal District Judge at Nalgonda for dissolution of marriage. Whereas the petitioner has pleaded that she was necked out and harassed by her husband, she was forced to leave his society, she is living with her parents, she is constrained to file M.C. No.189 of 2022 and O.P.No.949 of 2022 before the Judge, Family Court at Malkajgiri claiming maintenance to her and her minor child and also for restitution of conjugal rights respectively. She is also constrained to file DVC No.63 of 2021 and another criminal case in CC No.663 of 2021 for the offence under Section 498-A IPC and both these cases are pending before learned III Additional Metropolitan Magistrate, Malkajgiri. Thus, it is causing lot of inconvenience to the petitioner and her minor child to attend on AVR,J Tr.CMP_190_2022 : Page No.7 of 12:
each and every date of appearance before the District Court at Nalgonda in O.P.No.12 of 2022. Accordingly, the petitioner requested for transfer of O.P.No.12 of 2022.
8. Perused the principles laid in the decisions relied on by the learned counsel for the respondent. There is no strait-
jacket formula either to reject or accept the application filed by the wife seeking transfer, each case has to be considered on its own merits. Though the respondent has claimed that he is ever ready and willing to pay the charges or travelling expenses of the petitioner whenever her presence is required before the Court at Nalgonda, be it stated that nowhere in his counter the husband has stated that wife / petitioner is either gainfully employed or that he has been paying maintenance to his wife and minor child. It is not denied by the respondent that the petitioner has filed M.C.No.189 of 2022 as he is not paying maintenance to her. In such fact situation of the case, I do not find any bonafides in the offer made by the respondent / husband that he would pay travelling expenses to the petitioner as and when her presence is required before the Court at Nalgonda.
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9. It may be stated that undisputedly four cases i.e. O.P.No.949 of 2022 for restitution of conjugal rights and M.C.No.189 of 2022 for payment of maintenance, both are pending before the Judge, Family Court at Malkajgiri, D.V.C.No.63 of 2021 and C.C.No.663 of 2021 both are pending before the learned III Additional Metropolitan Magistrate at Malkajgiri between the same parties. Only one case i.e. O.P.No.12 of 2022, filed by the respondent for dissolution of marriage, is pending at Nalgonda. In this context, I may refer to the judgment of Hon'ble Apex court in Sangeetha alias Shreya Vs. Prasant Vijay Wargiya7 wherein the Apex Court has held that between husband and wife, the convenience of the wife must prevail while considering the transfer applications.
10. In NCV Aishwarya vs AS Saravana Karthik Sha8, the Apex Court while dealing with similar facts held that the wife, who is an young lady, staying alone along with her aged parents, was unable to travel from Chennai to Vellore to attend the Court proceedings, filed by the husband seeking annulment 7 (2004) 13 SCC 407 8 2022 LiveLaw (SC) 627 AVR,J Tr.CMP_190_2022 : Page No.9 of 12:
of marriage and considering the convenience of wife, transferred the matter from Family Court at Vellore to the jurisdictional Court at Chennai.
11. In the above case, Hon'ble Supreme Court further held that the cardinal principle for exercise of power under Section 24 of CPC is that the ends of justice should demand the transfer of the suit, appeal or other proceeding and in matrimonial disputes, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the 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 socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked into while considering transfer application.
12. Reverting back to the facts of the case, as indicated above, the petitioner is living with her old aged parents within AVR,J Tr.CMP_190_2022 : Page No.10 of 12:
the limits of Malkajgiri District, she is a housewife, she is living along with her minor child, there is no plea of respondent paying any maintenance to her and that the petitioner along with her minor child are under the protective umbrella of her parents. The petitioner has filed O.P.No.949 of 2022 for restitution of conjugal rights and M.C.No.189 of 2022 claiming maintenance and both the matters are pending before the Judge, Family Court at Malkajgiri. She has also filed a domestic violence case and a criminal case pending on the file of the III Additional Metropolitan Magistrate at Malkajgiri. The respondent has to attend before the Courts at Malkajgiri in all the above four cases more particularly in O.P.No.949 of 2021 for restitution of conjugal rights and M.C.No.189 of 2022 for maintenance, pending on the file of Judge, Family Court at Malkajgiri and that the parties have to undergo counseling process. To avoid divergent views and contradictory findings in O.P.No.949 of 2022 and in O.P.No.12 of 2022 it is felt essential that both the matters are to be tried together by one Judicial Officer. Therefore, having regard to the fact that the cases filed by the petitioner / wife are pending at Malkajgiri, I deem it fit to withdraw O.P.No.12 of 2022, filed by the respondent / husband for AVR,J Tr.CMP_190_2022 : Page No.11 of 12:
dissolution of marriage on the file of Principal District Judge, Nalgonda and to transfer the same to the Judge, Family Court at Malkajgiri to be tried along with O.P.No.949 of 2022 and M.C.No.189 of 2022.
13. In that view of the matter, considering the principles laid by the Apex Court in the decisions relied by learned counsel for the respondent and also in the decisions discussed above, I find justification in the request of the petitioner / wife for withdrawal of O.P.No.12 of 2022, pending on the file of the District Judge at Nalgonda and to transfer the same to the Judge, Family Court at Malkajgiri to be tried along with O.P.No.949 of 2022 and M.C.No.189 of 2022, pending on the file of that Court.
14. In the result, this Transfer Civil Miscellaneous Petition is allowed, O.P.No.12 of 2022 (H.M.O.P.No.12 of 2022), pending on the file of the District Judge, Nalgonda is ordered to be withdrawn and transferred to the Court of the Judge, Family Court, Malkajgiri, Medchal-Malkajgiri District to be tried along with O.P.No.949 of 2022 and M.C.No.189 of 2022, pending on the file of that Court. Learned Principal District Judge, AVR,J Tr.CMP_190_2022 : Page No.12 of 12:
Nalgonda shall transmit the entire case records in O.P.No.12 of 2022, pending on the file of that court to the Court of the Judge, Family Court, Malkajgiri, duly indexed, within one month from the date of receipt of copy of this order. In the circumstances of the case, there shall be no order as to the costs. As a sequel, miscellaneous applications if any pending, shall stands closed.
________________________________ A.VENKATESWHARA REDDY, J Dated : 19-10-2022 abb