Karnataka High Court
Smt Ester Bhuvana K vs Sri Pradip Isaac on 23 February, 2018
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CIVIL PETITION NO. 193/2017
BETWEEN
SMT. ESTHER BHUVANA K,
W/O PRADIP ISAAC,
R/A NO. 24/10, NEW THILLAINAGAR,
1ST AVENUE, 5TH CROSS (EAST),
VADAVALLI, PAPANNACHENPUDUR,
COIMBATORE NORTH, COIMBATORE,
TAMILNADU-641 041
... PETITIONER
(BY SRI. RUDRAPPA P., ADV)
AND
SRI. PRADIP ISAAC,
S/O COLONEL. P. ISAAC,
AGED ABOUT 39 YEARS,
R/A #317, S.L.V. NIVAS,
PATTANDURAGRAHARA VILLAGE,
ECC ROAD, WHITEFIELD,
BENGALURU - 560 066
... RESPONDENT
(BY SRI. S. V. GIRIDHAR ADV.)
THIS CIVIL PETITION FILED UNDER SECTION 24
OF CPC., PRAYING TO. A) TRANSFER THE PETITION IN
MC NO. 43/2017 PENDING ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE COURT, BENGALURU
RURAL DISTRICT, BENGALURU TO THE FILE OF
HON'BLE PRINCIPAL FAMILY COURT, COIMBATORE
DISTRICT COURT COMPLEX, COIMBATORE, TAMIL
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NADU. B) PASS SUCH OTHER APPROPRIATE JUDGMENT
OR ORDER/S AS THIS HON'BLE COURT DEEMS FIT
UNDER FACTS AND CIRCUMSTANCES OF THE CASE, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondent. Perused the records.
2. The petitioner has approached this court seeking transfer of MC No.43/2017 pending on the file of the II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, to the file of the Principal Family Court, Coimbatore District in Tamilnadu.
3. The learned counsel for the respondent has filed a detailed objection contesting the petition seriously.
4. At the out set, the learned counsel for the petitioner submitted with regard to the jurisdiction of this court u/s.23 of the CPC submitting that this court 3 has got jurisdiction to pass an order to transfer a case inter-state i.e., from Bengaluru to Coimbatore, in Tamilnadu. So far as the jurisdiction of this court is concerned, the respondent's counsel has no objection and he submits that this court has got jurisdiction.
5. The petitioner has claimed transfer of this petition mainly on two grounds. One is she is presently unemployed and residing in Coimbatore with her parents and it is very difficult for her to come over to Bengaluru, and to appear before the Bengaluru Court; Secondly, she has taken up the contention that she being a woman, cannot travel alone from Coimbatore to Bengaluru, frequently and it causes inconvenience to her. Further, it is submitted that if she has to travel to Bengaluru to attend the case, she has to be accompanied by her parents, which is an additional burden to her. Except these two grounds, no other grounds are urged before this court explaining the difficulties to attend before Bengaluru Court.
6. Contrary to the above said contention raised in the petition, the learned counsel for the petitioner has 4 also argued that the marriage of the petitioner with the respondent took place about 10 years back and the husband and wife lived happily with each other for a period of five years in Bengaluru, and both were Software Engineers and they were working together in a Company are not in dispute. It is further argued that, thereafter, the petitioner left the conjugal company of the respondent and started residing in her parents house at Coimbatore. The respondent made all his efforts to get her back, but his efforts were of no use. He conversed with her through E-mail correspondence, by exchange of letters and she has also expressed in her reply dated 29.1.2017 that she is ready and willing for the divorce, but it should happen outside the judicial system, particularly before a Church, wherein she has got utmost belief and faith in Church proceedings. As the respondent expressed his willingness to take divorce in accordance with law by way of judicial verdict, he again wrote to her on 27.2.2017 stating that if she is willing to have divorce, he can move the competent court for mutual divorce by means of filing mutual 5 consent divorce petition or if she is not willing, he will file a petition in accordance with the provisions of the Indian Divorce Act for divorce on available grounds to him.
7. Further, it appears, the petitioner has not replied. As the facts stands, it is the husband who has filed the petition before the Bengaluru Court in MC No.43/2017. The learned counsel for the respondent has relied upon a decision of the Hon'ble Apex Court reported in (2006) 9 SCC 197 between Anindita Das and Srijit Das, wherein the Hon'ble Apex Court has expressed its anguish with regard to the innumerable transfer petitions being filed and therefore, the court has laid down certain circumstances as to under what circumstances, the court can grant transfer at paragraphs 4 and 5 in the case cited supra, which reads thus:
"4. This court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this 6 case, is six years old and there are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met.
5. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out."
In the said case, the husband was ready and willing to meet the expenses. The court considering the grounds urged therein has in fact rejected the petition as those grounds are not sufficient to grant the transfer petition.
8. Likewise, the learned counsel has also relied upon a decision of the Madras High Court reported in 2009 SCC On Line Raj 4290: (2010) 3 CCC 472 7 between Smt. Jaiwanti Gahija and Ashok Kumar Sharma, wherein the transfer application was partly allowed considering the grounds urged that the husband was willing to bear the expenses of the wife and subject to that, some arrangements have been ordered by the Court.
9. Therefore, looking to the above said facts and circumstances of the case and the above said rulings, it is clear that, in all the cases transfer is not automatic, merely because the wife files a petition. Normally, the court considers the petition of the wife under peculiar circumstances, if she has a small kid or if she is suffering from any ill-health or if she is badly placed in the life, so that she cannot travel due to her mental disability or physical disability or any cases are pending filed by the wife at the place of the wife and the husband has already attending the case, to assist the wife to travel from one place to another, the court can consider such circumstances as sufficient ground for transfer.
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10. However, in this particular case, the two grounds raised by the petitioner is that she is unemployed and because of that reason, she cannot travel and she being a woman, therefore, frequently, she cannot travel to Bengaluru, are no grounds for transfer of the Petition from one place to another place. A woman and a man are equally treated in our Constitution. Equal opportunity, equal empowerment have been given to the man and the woman. Merely because she is a woman, that itself is not the criteria for giving transfer of the petition. The second thing is that she is unemployed and she cannot travel from that place to Bengaluru, is also not tenable because while arguing the matter, the learned counsel for the respondent has specifically submitted that he would make all arrangement and pay the expenses of the petitioner to travel from Coimbatore to Bengaluru. Therefore, under the above said facts and circumstances of the case particularly in this case, no such sufficient grounds or strong grounds are made out by the wife to transfer the Petition from Bengaluru to 9 Coimbatore. Hence, the grounds are insufficient and because of that reason, the Petition deserves to be dismissed.
Accordingly, the Petition is dismissed. However, it is made clear that the trial Court has to fix up the cost to be payable by the respondent towards the expenditure that may be meted out by the petitioner in order to travel from Coimbatore to Bengaluru, to attend the case.
Sd/-
JUDGE PL*