Telangana High Court
Smt.Bitla Sravanthi Gunduru Sravanthi vs Bitla Srinivas And Another on 6 September, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
Tr.CMP Nos.130 and 218 of 2022
COMMON ORDER:
Transfer Civil Miscellaneous Petition (Tr.CMP) No.130 of 2022 is filed by the wife against the husband under Section 24 of the Civil Procedure Code, 1908 (for short 'CPC') with a prayer to withdraw FCOP No.5 of 2021 pending on the file of the learned Judge, Family Court at Nizamabad and to transfer the same to the learned Senior Civil Judge at Kamareddy.
2. Whereas, Tr.CMP No.218 of 2022 is filed by the husband against the wife with a prayer to withdraw M.C.No.16 of 2021 pending on the file of the Additional Judicial First Class Magistrate at Kamareddy and to transfer the same to the learned Judge, Family Court at Nizamabad to be tried along with FCOP No.5 of 2021 pending on the file of that Court.
3. The main averments of the affidavit of the wife filed in support of Tr.CMP No.130 of 2022 are that she is the legally wedded wife of her husband, their marriage was Page 2 of 10 AVRJ Tr.CMP Nos.130 & 218 of 2022 performed on 09.05.2018, out of the wed-lock they were blessed with a male child viz., Vishwateja, who is aged about three years. Later, her husband and his family members have pressurised her with a demand for additional dowry and attempted to kill her, she was made to leave the company of her husband and finally started living with her parents. Thereafter, her husband filed OP No.5 of 2021 under Section 13 (1)(ia) and (ib) of the Hindu Marriage Act, 1955. She has filed M.C.No.16 of 2021 on the file of Judicial First Class Magistrate at Kamareddy and she has also filed a criminal case in Crime No.177 of 2021 for the offence punishable under Section 498-A of the Indian Penal Code, 1860 (for short 'IPC'), which is pending on the file of the Special Mobile Court at Kamareddy. She being a woman not able to attend the Family Court for every date of hearing by commuting from Kamareddy to Nizamabad over distance of more than 80 k.m., accordingly prayed for transfer of FCOP No.5 of 2021 pending on the file of the Judge, Family Court at Nizamabad to the Court of the Senior Civil Judge at Kamareddy where the maintenance case and another criminal case are pending. Page 3 of 10
AVRJ Tr.CMP Nos.130 & 218 of 2022
4. The main averments of the affidavit filed by the husband in support of Tr.CMP No.218 of 2022 are that the respondent No.1 is his legally wedded wife, their marriage took place on 09.05.2018. However, he has made certain other allegations stating that she was in love with one Jakka Srikanth of her village prior to their marriage and also she was in physical relationship and left the house on 19.11.2018 and never turned to join the matrimonial society, a panchayat was also held and finally he has filed FCOP No.5 of 2021 on the file of the learned Judge, Family Court at Nizamabad, wherein Jakka Srikanth is made a second respondent. The wife has filed a false case for the offence punishable under section 498-A of IPC and MC No.16 of 2021 at Kamareddy only as a counter blast to the FCOP No.5 of 2021, accordingly prayed for withdrawal of MC No.16 of 2021 pending on the file of Additional Judicial First Class Magistrate at Kamareddy and to transfer the same to the Family Court at Nizamabad.
5. Heard the learned counsel on both sides in both the Tr.CMPs. The submissions made on either side and the Page 4 of 10 AVRJ Tr.CMP Nos.130 & 218 of 2022 averments of the counter filed by the first respondent/ husband in Tr.CMP No.130 of 2022 have received due consideration of this Court.
6. The learned counsel for the petitioner/husband in Tr.CMP No.218 of 2012 strenuously contends that there is a threat to the life of husband, if FCOP No.5 of 2021 is transferred from the Judge, Family Court at Nizamabad to the Senior Civil Judge at Kamareddy and that in fact he is taking steps for transfer of Domestic Violence Case from Kamareddy to Nizamabad and that there are no merits in the request of the wife for withdrawal and transfer of FCOP No.5 of 2021 from Nizamabad to Kamareddy.
7. Per contra, the learned counsel for the wife who is the transfer petitioner in Tr.CMP No.130 of 2022 seeks to submit that as per Section 19 (iii)(a) of the Hindu Marriage Act, wife is entitled to prosecute her matrimonial disputes before the jurisdictional court where she started living after separating from her husband, that the wife is living along with her minor child with her parents and she has no source of income, the respondent has not paid any Page 5 of 10 AVRJ Tr.CMP Nos.130 & 218 of 2022 maintenance to her or to her minor child and accordingly prayed to consider the request of the petitioner/wife in Tr.CMP No.130 of 2022.
8. On a careful perusal of the averments made in the affidavits filed in support of both Tr.CMP No.218 of 2022 filed by the husband and Tr.CMP No.130 of 2022 filed by the wife, it is found that the relationship between the parties is not in dispute. It is also not in dispute that they were blessed with a male child who is with the petitioner- wife. However, the contention of the husband is that if FCOP is withdrawn from the Judge, Family Court at Nizamabad and transferred to the Senior Civil Judge's Court at Kamareddy, there is every possibility of his wife or her relatives threatening him and there is a threat to his life and that all the cases at Kamareddy are filed subsequent to FCOP No.5 of 2021.
9. Be that as it may, wife is entitled to prosecute the matrimonial disputes before the Jurisdictional Courts where she is living after she is deserted by her husband. Undisputedly, wife along with her minor child are living in Page 6 of 10 AVRJ Tr.CMP Nos.130 & 218 of 2022 the limits of Kamareddy with her parents and she is under their protective umbrella. Thus the wife is a young unemployed lady and totally depending on her parents for her survival along with her minor child. It is not the case of the husband that either he is paying maintenance to his wife or to his minor child or that his wife is gainfully employed and able to maintain herself and her minor child.
10. In this context, I may refer to the judgment of the Hon'ble Supreme Court of India in Sangeetha alias Shreya v. Prasant Vijay Wargiya1 wherein it is held that if any threat perception is given to the respondent/husband, he is always at liberty to lodge a report before the police concerned or to complain before the concerned Court. If any such complaint is made, it will be considered by the Court or by the concerned police on its own merits. It is further held that between husband and wife, the convenience of the wife must prevail.
1 2004 (13) SCC 407 Page 7 of 10 AVRJ Tr.CMP Nos.130 & 218 of 2022
11. In N.C.V. Aishwarya v. A.S. Saravana Karthik Sha2 the Apex 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 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.
12. 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 2 2022 Live Law (SC) 627 Page 8 of 10 AVRJ Tr.CMP Nos.130 & 218 of 2022 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.
13. Thus, in case of any threat either from the wife or from her family members, the husband is always at liberty to initiate appropriate action against his wife or her family members. There are two other cases i.e., maintenance case and criminal case are pending at Kamareddy. In the course of arguments, it is submitted by the learned counsel for the husband that a Domestic Violence Case is also filed at Kamareddy and he is taking steps for transfer of the same to Nizamabad. Thus in all, there are three cases filed by the wife pending at Kamareddy wherein the husband has to cause his appearance. Therefore, if FCOP No.5 of 2021 is withdrawn and transferred to the file of the Senior Civil Judge at Kamareddy, it would be convenient for both the parties and they may appear all the matters from one court complex, instead of appearing at various places. Page 9 of 10
AVRJ Tr.CMP Nos.130 & 218 of 2022 Apart from it, wife is entitled to prosecute her matrimonial disputes before the jurisdictional court where she started living after separating from her husband.
14. In that view of the matter, considering the principles laid by the Apex Court in the above decisions and the scheme of Hindu Marriage Act, I find justification in the request of the petitioner/wife for withdrawal of FCOP No.5 of 2021 pending on the file of the Judge, Family Court at Nizamabad and to transfer the same to the Senior Civil Judge at Kamareddy.
15. In the result, the Transfer Civil Miscellaneous Petition No.130 of 2022 filed by the wife is allowed. FCOP No.5 of 2021 pending on the file of the learned Judge, Family Court at Nizamabad is ordered to be withdrawn and transferred to the file of the learned Senior Civil Judge at Kamareddy for disposal in accordance with law. Tr.CMP No.218 of 2022 filed by the husband is dismissed. The learned Judge, Family Court at Nizamabad shall transmit the entire record in FCOP No.5 of 2021 duly indexed, Page 10 of 10 AVRJ Tr.CMP Nos.130 & 218 of 2022 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: 06.09.2022 Isn