Telangana High Court
Lakshmi Kanaka Durga vs Srikanth Prasad Thallapragada on 1 September, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
Tr.CMP Nos.103 and 140 of 2022
COMMON ORDER:
Transfer Civil Miscellaneous Petition (Tr.CMP) No.103 of 2022 is filed by the husband under Section 24 of the Civil Procedure Code, 1908 (for short 'CPC') with a prayer for withdrawal of GWOP No.82 of 2021 pending on the file of the Family Court, Ranga Reddy District at L.B. Nagar and to transfer the same to the Principal Family Court at Secunderabad to club with FCOP No.731 of 2019 pending on the file of that Court.
2. Whereas, Tr.CMP No.140 of 2022 is filed by the wife against the husband with a prayer to withdraw FCOP No.731 of 2019 pending on the file of the Principal Family Court at Secunderabad and to club the same with GWOP No.82 of 2021 pending on the file of the Family Court, Ranga Reddy District at L.B. Nagar.
3. Heard the learned counsel on both sides. The submissions made on either side have received due Page 2 of 7 AVRJ Tr.CMP Nos.103 & 140 of 2022 consideration of this Court. Perused the material available on record.
4. The main averments of the affidavit of the husband filed in support of Tr.CMP No.103 of 2022 are that his marriage with the respondent/wife was solemnized on 24.11.2012 and out of the wed-lock, they were blessed with a male child on 12.01.2014. Both the petitioner and the respondent are employed. He has been to Australia for further studies in the year 2016, whereas the respondent is working in Deloitte. Later, without any valid reasons the respondent/wife has filed divorce OP, vide FCOP No.731 of 2019 on the file of the Principal Family Court at Secunderabad, she has also filed GWOP No.82 of 2021 on the file of the Judge, Family Court, Ranga Reddy District at L.B. Nagar under Section 7 of the Guardians and Wards Act, 1890 read with Section 7 of the Family Courts Act, 1984 seeking custody of their minor child, who has been in the custody of the petitioner from February 2018 onwards at Melbourne, Australia and attending school. She has also filed a case in Crime No.973 of 2021 for the offences Page 3 of 7 AVRJ Tr.CMP Nos.103 & 140 of 2022 punishable under Sections 498-A, 406 and 506 of the Indian Penal Code, 1908 (for short 'IPC') and under Sections 3 and 4 of the Dowry Prohibition Act, 1961 before the Women Police Station, C.C.S., Nampally, Hyderabad, accordingly prayed to withdraw GWOP No.82 of 2021 pending on the file of the Judge, Family Court at L.B. Nagar and to transfer the same to the Principal Family Court at Secunderabad to be tried along with FCOP No.731 of 2019.
5. Whereas, the wife has filed Tr.CMP No.140 of 2022 for withdrawal of FCOP No.731 of 2019 pending on the file of the Judge, Principal Family Court at Secunderabad and to transfer the same to the Judge, Family Court at L.B. Nagar to be tried along with GWOP No.82 of 2021 alleging that she has filed FCOP No.731 of 2019 before the Family Court at Secunderabad for dissolution of marriage. Thereafter, she has also filed GWOP No.82 of 2021 on the file of the Judge, Family Court, Ranga Reddy District at L.B. Nagar under Section 7 of the Guardians and Wards Act read with Section 7 of the Family Courts Act for her Page 4 of 7 AVRJ Tr.CMP Nos.103 & 140 of 2022 appointment as legal guardian of minor child. In fact, in GWOP, her husband/respondent remained ex parte and her evidence was also recorded. Thereafter, he has filed an application under Order-IX Rule-7 of CPC. She has also filed a Domestic Violence Case (DVC) No.131 of 2021 on the file of the learned VI Additional Chief Metropolitan Magistrate at L.B.Nagar. She has also filed a case in Crime No.973 of 2021 before the Women Police Station, CCS, Nampally, wherein Calendar Case was filed on 17.03.2022, accordingly prayed for withdrawal of FCOP No.731 of 2019 filed by her pending on the file of the Judge, Principal Family Court at Secunderabad and to transfer the same to the Judge, Family Court, Ranga Reddy District at L.B. Nagar to be tried with GWOP No.82 of 2021.
6. Thus, as per the material available on record, it is the wife, who is the petitioner in Tr.CMP NO.140 of 2022, has filed both the cases i.e., FCOP No.731 of 2019 on the file of the Principal Family Court at Secunderabad and GWOP No.82 of 2021 on the file of the Judge, Family Court, Ranga Reddy District at L.B. Nagar. Now she is praying for Page 5 of 7 AVRJ Tr.CMP Nos.103 & 140 of 2022 transfer of FCOP No.731 of 2019 pending on the file of the Judge, Family Court, Secunderabad to the Family Court, Ranga Reddy District at L.B.Nagar to be tried along with GWOP No.82 of 2021 stating that during the relevant time of filing FCOP, she was living within the limits of Secunderabad Courts, but later shifted to Mohannagar, Kothapet, Ranga Reddy District, accordingly, she has filed GWOP before the Family Court, Ranga Reddy District at L.B.Nagar.
7. Be it stated that the wife has also filed a Domestic Violence Case before the VI Additional Chief Metropolitan Magistrate's Court at L.B. Nagar, Ranga Reddy District and she has also filed a 498-A case before the Women Police Station, C.C.S., Nampally, within the limits of Metropolitan Sessions Judge, Hyderabad. Thus not only these two cases, but two other cases are also pending between the parties before other Courts at L.B. Nagar and Nampally. Further, it is an admitted fact that a minor child is with his father in Australia since the year 2018.
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AVRJ Tr.CMP Nos.103 & 140 of 2022
8. The considerations for deciding GWOP and divorce OP are quite distinct and they cannot be tried together. The FCOP No.731 of 2019 is filed by the wife for dissolution of marriage under Section 13 (1)(ia) and (ib) of Hindu Marriage Act on various allegations, whereas GWOP is only filed seeking custody of her minor child who is now in Australia with his father. Therefore, considering the fact that the subject matter involved in FCOP and GWOP are quite distinct, both the cases need not be tried by one Judge only and that Kothapeta (place of her residence) is well connected with Secunderabad Court and she has some other cases before the Courts at Nampally, I find no merit in the request of the petitioner for transfer of FCOP No.731 of 2019. Similarly, I do not find any merit in the request of the husband who presently living with his minor child in Australia for transfer of GWOP from the Judge, Family Court, Ranga Reddy District at L.B. Nagar to the Judge, Family Court at Secunderabad.
9. Section 24 of CPC deals with general power of transfer conferred on the High Court and the District Page 7 of 7 AVRJ Tr.CMP Nos.103 & 140 of 2022 Court. The cardinal principle for exercise of power under Section 24 of CPC is that ends of justice should demand such transfer of pending suit, appeal or other proceedings. In the circumstances stated above taking into consideration of the conduct of both the parties, nature of dispute involved in FCOP filed for dissolution of marriage, GWOP filed for custody of minor child, I do not find any merit in the request of petitioners in Tr.CMP Nos.103 and 140 of 2022. In that view of the matter, I do not find any justification or merit in both the Tr.CMPs filed by the husband and the wife in Tr.CMP Nos.103 and 140 of 2022 respectively.
10. In the result, both the Transfer Civil Miscellaneous Petitions are dismissed as devoid of merits. However, in the circumstances of the case, 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: 01.09.2022 Isn