Andhra HC (Pre-Telangana)
S. Durga Prasad vs S. Raja Ramani @ Arumilli Roja Ramani on 31 December, 2002
Equivalent citations: 2003(2)ALD580, 2003(1)ALT332
ORDER P.S. Narayana, J.
1. These two Transfer Civil Miscellaneous Petitions are filed under Section 24 of the Code of Civil Procedure, 1908, hereinafter referred to in short as "Code" by both the husband and wife for transfer of O.P. No. 195 of 2002 on the file of Senior Civil Judge, Rajahmundry to the Court of Principal Senior Civil Judge, Ranga Reddy District to be tried along with O.P. No. 322 of 2002 and vice-versa.
2. For the purpose of convenience, the parties will be referred to as "husband" and "wife".
3. The husband in Transfer C.M.P. No. 442/2002 had stated that he filed O.P. No. 322/2002 on the file of Principal Senior Civil Judge, Ranga Reddy seeking the relief of divorce on the ground of cruelty. The husband also made certain allegations relating to the presentation of the petition before A.P. Women's Commission, Hyderabad and closure of the same. It was further stated that the wife after coming to know of the O.P. filed by the husband had filed O.P No. 195/2002 on the file of Senior Civil Judge, Rajahmundry praying for the relief of restitution of conjugal rights. It is also stated that the O.P. filed by the wife is latter in point of time and has to be transferred to the file of Principal Senior Civil Judge, Ranga Reddy inasmuch as O.P.No. 322/2002 is pending in the said Court by virtue of Section 21-A of the Hindu Marriage Act, 1995, hereinafter referred to as "Act" in short. It is also stated that on 13-8-1995, the husband was kidnapped by some unidentified persons who had taken him to the outskirts of Devaremjal and beat him black and blue and subsequent thereto the husband lodged a Police complaint with Kukatpalli Police Station on 15-8-1995 and certain allegations had been made in paragraph 9 of the petition and it was also stated that in view of the assurance he had withdrawn the complaint on 31-8-1995.
4. Likewise, as stated supra, the wife filed Transfer C.M.P. No. 453/2002 to transfer O.P. No. 322/2002 on the file of Principal Senior Civil Judge, Ranga Reddy to Senior Civil Judge, at Rajahmundry to be tried along with O.P. No. 195/2002 filed by him. It was stated that their marriage took place on 15-10-1989 at Secunderabad and the same was consummated and they were blessed with a daughter by name Sujana who is now 11 years. It is further stated that the wife got selected as a Secondary Grade Teacher in December 1997 and she has been working as Assistant Teacher in Mandal Parishad Elementary School, Dosakayalapalli, East Godavari District, which is about 15 Kms. from Rajahmundry town and she has been staying along with her old parents at Rajahmundry where from she has been attending to her duties. It was also stated that she filed OP No. 195/2002 on the file of Senior Civil Judge, Rajahmundry for restitution of conjugal rights under Section 9 of the Act, whereas the husband filed O.P. No. 322/2002 on the file of Principal Senior Civil Judge, Ranga Reddy District for the relief of divorce under Section 13 of the Act. It was also stated that it is very difficult for her to go and contest the case in the Court in Ranga Reddy District since she has to look after her old parents and her father is a diabetic patient undergoing treatment at Rajahmundry and she cannot lonely travel all the way from Rajahmundry to the Court in Ranga Reddy District, Hyderabad to contest the said O.P. It was also stated that she has been apprehending danger to her life in the hands of the husband.
5. Sri Nalin Kumar, the learned Counsel representing the husband had taken me through the allegations made by both the parties and had submitted that the apprehension of the wife is totally unfounded since she never complained of any incident, but however the husband had suffered and had also lodged a complaint, but had withdrawn the same on the assurance. The learned Counsel also had pointed out that here is a case where the husband has been suffering and there cannot be any hard and fast rule that in every case where the wife moves an application for transfer, the power under Section 24 of the Code should be exercised in favour of the wife only. The learned Counsel also had made elaborate submissions about the scope and ambit of Section 24 of the Code and Section 21-A of the Act in this context. The learned Counsel also had taken me through the allegations in the petitions and also the allegations in the counter-affidavits and had pointed out that in view of the fact that there was already an attack on the husband, it cannot be just to drive him to Rajahmundry where really he apprehends danger to his life.
6. The learned Counsel representing the wife, Sri Venkatesh had submitted that in the facts and circumstances of the case, it is but just and reasonable to transfer the O.P. filed by the husband to the Senior Civil Judge at Rajahmundry, The learned Counsel also had taken me through the allegations made in the respective pleadings and also the counter-affidavits. The learned Counsel also submitted that the apprehension of the husband is totally ill-founded and this ground is being raised only for the purpose of avoiding the transfer of his O.P. to Rajahmundry. The learned Counsel also submitted that the powers under Section 24 of the Code are wide and hence it cannot be said that such powers are controlled by Section 21-A of the Act. The learned Counsel also had placed strong reliance on B. Sreelaxmi v. B.T. Gurumurthy, . Further elaborating his submissions, the learned Counsel also had placed reliance on Rachna Kanodia v. Anuk Kanodia, 2001 (7) Supreme 96; Sumita Singh v. Kumar Sanjay and Anr., 2001 AIR SCW 5193, and had contended that in view of the views expressed by the Apex Court, it is but just and reasonable that the wife's Transfer C.M.P, be ordered as prayed for in the facts and circumstances of the case.
7. Heard both the Counsel and also perused the material available on record.
8. These Transfer Civil Miscellaneous Petitions are filed under Section 24 of the Code both by the husband and the wife seeking transfer of the pending O.Ps. from one Court to another, specified supra on the grounds pleaded in the respective Transfer Civil Miscellaneous Petitions. No doubt, the husband had taken a stand that the wife, after coming to know that he had already filed O.P. for divorce on the file of Principal Senior Civil Judge, Ranga Reddy, had filed the subsequent O.P. on the file of Senior Civil Judge, Rajahmundry seeking a decree for restitution of conjugal rights on untenable grounds with a mala fide intention to harass him. The husband also had taken a specific stand that the wife being a native of Rajahmundry, commands lot of influence at Rajahmundry and the husband also had denied the allegations that his wife has to look after her old parents and that her father is a diabetic patient etc. The husband also had referred to an incident of kidnapping by some unidentified persons, lodging the complaint and withdrawing the same on some assurance. The wife had taken a specific stand to the effect that she has been working as Assistant Teacher at Mandal Parishad Elementary School, Dosakayalapalli, East Godavari District which is about 15 Kms. from Rajahmundry and she has to look after her old parents and she cannot lonely travel all the way from Rajahmundry to the Court in Ranga Reddy District, Hyderabad to contest the O.P. filed by the husband and she is also apprehending danger to her life in the hands of her husband in the event of her going over to Hyderabad to contest the O.P. filed by the husband.
9. The Transfer Civil Miscellaneous Petitions are filed under Section 24 of the Code. Section 24 of the Code deals with General power of transfer and withdrawal and such power can be exercised on the application of any of the parties or of its own motion by the High Court or the District Court at any stage. Section 21-A of the Act dealing with power to transfer petitions in certain cases, reads as hereunder:
(1) Where--
(a) a petition under this Act has been presented to a District Court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13; and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, whether in the same District Court or in a different district Court, in the same State or in a different State, the petitions shall be dealt with as specified in Sub-section (2).
(2) In a case where Sub-section (1) applies,--
(a) if the petitions are presented to the same District Court, both the petitions shall be tried and heard together by that District Court;
(b) if the petitions are presented to different District Courts, the petition presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the District Court in which the earlier petition was presented.
(3) In a case where Clause (b) of Sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 {5 of 1908), to transfer any suit or proceeding from the district Court in which the later petition has been presented to the District Court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
Section 21 of the said Act dealing with application of Act 5 of 1908 reads as hereunder:
"Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908".
10. In the decision referred in B. Sreelaxmi's case (supra), this Court while dealing with transfer of matrimonial proceedings initiated by two spouses against each other in different Courts to a single Court, had observed that the power of High Court under Section 24 of the Code is not curtailed by Sections 21 and 21 -A of the Act.
11. It is not in serious dispute that the wife is working as a Teacher. Though certain allegations were made by the wife the said allegations were specifically denied by the husband, it is no doubt true that the husband made an allegation relating to kidnapping by some unidentified persons. But however, the said controversy had not seen its logical end. By such an allegation made by the husband, the apprehension of the husband that if the husband goes over to Rajahmundry his life will be in danger, cannot be accepted as a well founded allegation. Apart from it, as can be seen the facts of the case, the wife is an employee living with her old parents at Rajahmundry and in view of the specific allegations made by the wife in paragrah-3 of the Transfer CMP No. 453/2002, 1 am satisfied that it will be highly inconvenient for the wife to go over to attend the Court of Principal Senior Civil Judge, Ranga Reddy District. In the decision referred in Sumita Singh 's case (supra), the Apex Court while dealing with transfer of matrimonial proceedings initiated by husband against wife, held that it is the convenience 6f the wife that must be looked at. In the decision referred in Rachna Kanodia's case (supra), the Apex Court also had observed that in transfer petition for transfer of matrimonial proceedings, the convenience that has to prevail is the convenience of the wife and the issue of marriage.
12. In view of the wide powers conferred on this Court under Section 24 of the Code, I am not inclined to accept that Section 21-A of the Act in any way operates as a bar to transfer O.P. No. 322/ 2002 on the file of Principal Senior Civil Judge, Ranga Reddy District to the Court of Senior Civil Judge at Rajahmundry. Taking into consideration all the facts and circumstances, which are reflected in the respective pleadings of the parties and also the material available on record, I am satisfied that O.P. No. 322/2002 on the file of Principal Senior Civil Judge, at Ranga Reddy be withdrawn and transferred to the file of Senior Civil Judge, Rajahmundry to be tried along with O.P. No. 195/2002 pending on the file of the said Court.
13. Thus, the Transfer CMP No. 453/ 2002 filed by the wife is hereby ordered and Transfer CMP No. 442/2002 filed by the husband is hereby dismissed as being devoid of merits.