Karnataka High Court
Kumari. Sumitra W/O Nanu Pawar vs Nanu S/O. Chandu Pawar on 13 April, 2023
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
CIVIL PETITION NO.100153/2021
BETWEEN
KUMARI SUMITRA W/O. NANU PAWAR
AGE:30 YEARS; OCC:HOUSEHOLD WORK,
R/O. DEVUR TANDA NO.2, POST MANNUR
TALUKA DEVAR HIPPARAGI (SINDAGI)
DIST: BIJAPUR-586101.
...PETITIONER
(BY SMT. R H ANGADI AND SMT.POOJA SAVADATTI.,
ADVOCATES)
AND
NANU S/O. CHANDU PAWAR
AGE:41 YEARS, OCC: GOVERNMENT SERVANT,
R/O. DEVUR L T TANDA NO.2, POST MANNUR
TALUKA DEVAR HIPPARAGI (SINDAGI),
DIST:BIJAPUR-586101.
ANNAPURNA
CHINNAPPA PRESENTLY WORKING AT KARNATAKA
DANDAGAL NEERAVARI NIGAMA NIYAMITH PUNARVASATHI
Digitally signed by
ANNAPURNA
AND PUNARNIRMAANA, SUB-DIVISION NO.7,
CHINNAPPA DANDAGAL
Location: HIGH COURT
OF KARNATAKA
UGAR KHURDH, TQ:ATHANI,
DHARWAD
DIST:BELAGAVI-591304.
...RESPONDENTS
(BY SRI. RAMACHANDRA A MALI.,ADVOCATE)
THIS CIVIL PETITION IS FILED U/SEC.24 OF CPC,
PRAYING TO PASS AN ORDER TRANSFERRING OS
NO.1482/2013 PENDING ON THE FILE OF I ADDITIONAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, ATHANI,
BELGAUM TO CIVIL JUDGEM JUDICIAL MAGISTRATE FIRST
CLASS, SINDAGI, IN THE INTEREST OF MEETING THE JUSTICE.
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THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, COMING FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THIS COURT, PRONOUNCED THE FOLLOWING:
ORDER
The present petition is filed under Section 24 of the Code of Civil Procedure by the wife seeking to withdraw O.S. No.1482/2013 filed by the respondent- husband for declaration that the present petitioner is not the legally wedded wife, which is pending on the file of the Principal Civil Judge and JMFC, Athani, Belgaum District and transfer the same to the Civil Judge and JMFC, Sindagi.
2. It is stated by the petitioner that, the marriage of the petitioner and the respondent was solemnized on 20.04.2000 at Sindagi as per their rites and customs prevailing. It is stated that the respondent is working as a Junior Engineer in Karnataka Neeravari Nigama Niyamith Punarvasathi and Punarnirmana Sub-Division-7, Ugar Khurdh Office at Athani, Belgaum. It is stated that after the marriage, the petitioner was residing with the respondent and leading marital life. It is stated that -3- later, the respondent and his family members tortured and harassed the petitioner and thrown out the petitioner from the matrimonial house. It is stated that the petitioner filed the complaint before the Athani Police Station and the case has been registered against the respondent. Since the respondent neglected the petitioner and failed to provide basic necessities, the petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the JMFC, Sindagi in Crl. Misc. No.101/2013.
3. After filing of the Criminal miscellaneous seeking maintenance, the respondent-husband filed a suit for declaration in O.S. No.1482/2013 on the file Principal Civil Judge and JMFC, Athani, Belgaum stating that the petitioner is not the legally wedded wife. The petitioner herein has filed her written statement in O.S.No.1482/2013. It is stated that the petitioner is residing at her parental house at Devar Hipparagi Taluk, Bijapur District and that the petitioner being a lady is unable to travel from Devar -4- Hipparagi Taluk, Bijapur District to Athani to attend the proceedings initiated by her husband before the Principal Civil Judge and JMFC, Athani, Belgaum District and hence, moved this application for transfer of the case.
4. Pursuant to the notice issued by this Court, the respondent filed his statement of objections stating that the petitioner is not entitled for any relief since several serious material facts have been suppressed by the petitioner and the petition filed seeking for transfer needs to be dismissed with exemplary costs. It is stated that the respondent has filed suit for a declaration that the petitioner is not the wife since the respondent has never married the petitioner as alleged in the petition. It is stated that the respondent had refused to marry the petitioner and had married another girl and the father of the petitioner who is an influential contractor, with the help of his sons has entered a false entry into the service register of the respondent by affixing a morphed photograph showing the petitioner and the -5- respondent together and has tampered the original service register alleging that the respondent and the petitioner's marriage was solemnized on 06.06.2011, whereas on the said date according to the respondent there is an official correspondence during March/April 2012 regarding the marital status of the respondent. It is stated that the petitioner has filed frivolous complaint in Cr. No.314/2012 for the offence punishable under Sections 498A, 323 and 504 of IPC claiming that the petitioner was married to the respondent on 06.06.2011 and the said complaint was pending for trial in C.C. No.582/2013 before the JMFC, Athani which has now been transferred to JMFC, Sindagi at the instance of the petitioner. It is further stated that the petitioner has filed another complaint in Cr. No.138/2012 for the offence punishable under Sections 494 and 420 of IPC and the same is also transferred to JMFC, Sindagi.
5. According to the respondent, the petitioner has stated in the complaint filed against the respondent that she was married to this respondent on -6- 06.06.2011, whereas in the present petition, the petitioner claims that she was married to this respondent on 20.04.2000 which falsifies the case of the petitioner. It is also further stated that a private complaint has been filed against the petitioner by the father and her brothers in PC No.189/2013 before the JMFC Court, Athani for the offences punishable under Sections 191, 192, 196, 466, 468, 471, 474, 499 read with Section 34 of IPC and the same is pending consideration before the Athani Court. It is further alleged that the present petition is filed in ulterior motive to protract the proceedings in the suit filed by the respondent for declaration that the petitioner is not the wife of this respondent. It is stated that the respondent is a government employee and has to travel to Sindagi on each and every date of hearing to attend the proceedings pending on the file of the JMFC, Sindagi along with 4 to 5 persons with him by hiring a private vehicle in view of life threats held out by the father and brothers of the petitioner against the respondent. It is stated that the problem of traveling by the petitioner is only a lame excuse in the name of -7- inconvenience and that the petitioner has filed several complaints against the respondent by levelling false and frivolous allegations of harassment.
6. Smt. Pooja Savadatti, learned counsel for Sri. R.H. Angadi, learned counsel for the petitioner, argued that the reason for the transfer of the matrimonial case from Athani to Sindagi is the inconvenience of the petitioner being a lady, and the distance between Athani and Devar Hipparagi (Sindagi) is around 137.4 kms and nearly it takes 03 hour 05 minutes and that three criminal cases i.e., C.C. No.582/2013 and PCR No.189/2013 pending on the file of the JMFC, Athani and C.C. No.456/2013 pending on the file of the JMFC, Hukkeri are transferred to the Court of JMFC, Sindagi in Crl. P. No.100699/2015 filed before this Court vide order dated 30.09.2015 and that the suit filed by the husband before the Principal Civil Judge and JMFC, Athani is a counter-blast to the petition filed by the petitioner under Section 12 of Domestic Violence Act at Sindagi.
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7. On the other hand, it is the contention of Sri. Ramachandra .A Mali, learned counsel for the respondent that the petition filed for transfer is with an ulterior motive to protract the proceedings filed by the respondent for declaration that the petitioner is not the wife of the respondent and that the respondent has been threatened by the father and brothers of the petitioner of dire consequences and the petitioner being a government employee has to travel to Sindagi along with 4 to 5 persons with him by hiring a private vehicle in view of life threats levelled by the petitioner's father and brothers and more particularly, the respondent has filed an affidavit and at paragraph No.3 has specifically stated that there is a threat to his life, if the petition is transferred to the Court of Sindagi.
8. This Court has heard the learned counsel for the parties and examined the material on record carefully.
9. The jurisdiction of this Court under Section 24 of CPC is invoked which gives general power of -9- transfer and withdrawal. In order to enable this Court to answer the dispute, it would be relevant to refer Section 24 of CPC, which reads as under:
"24. General power of transfer and withdrawal.-- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and--
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
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(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section,--
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) "proceeding" includes a proceeding for the execution of a decree or order.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."
10. The cardinal principle that requires to be considered 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 proceedings. In matrimonial matters, whenever the Courts are called
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upon to consider the plea of transfer, the Courts have to take into consideration the following:
i. Age of the wife;
ii. Economic condition of the wife; iii. Physical health iv. Wife having the custody of minor child v. Family conditions of the wife and vi. Profession of the husband.
And generally the convenience of the wife example, travelling, connectivity of the places and travelling expenses needs to be considered.
11. This Court has taken note that the several criminal proceedings have been initiated against each other which stood transferred and are pending consideration before the JMFC, Sindagi in view of the order passed by this Court in Crl. P.No.100699/2015 dated 30.09.2015.
12. The Hon'ble Apex Court in a series of the following judgments held as under:
i. In the case of Sapna Agarwal Vs. Om Prakash Jalan [AIR 2009 SC 1641] the Hon'ble
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Apex Court transferred the matrimonial proceedings considering the material on record and age of the wife.
ii. In the case of Fatema Vs. Jafri Syed Husain (Parvez.) [AIR 2009 SC 1773], the Hon'ble Apex Court considering the age of the wife as only 22 years held that it is difficult for her to attend the Court proceedings at Auranghbad from Srinagar and transferred the matrimonial proceedings.
iii. In the case of Reena Bahri Vs. Ajay Bahri [(2002) 10 SCC 136] transferred the matrimonial proceedings on the ground that the wife does not have anybody who can conveniently accompany her to Delhi.
iv. In the case of Rajani Kishor Pardeshi Vs. Kishor Babulal Pardeshi [(2005) 12 SCC 237], the Hon'ble Apex Court transferred the matrimonial proceedings on the ground that the wife was staying with her brother and both were not financially sound though the husband opposed the application by contending that it was equally inconvenient for him to go to the place of transfer and that he was willing to pay the expenses for her travel.
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v. In the case of Anitha Laxmi Narayan Singh Vs. Laxmi Narain Singh [(1992) 2 SCC 562] the Hon'ble Apex Court allowed the transfer petition on the ground that the husband is a high ranking railway officer who could bear the travel expenses.
vi. In the case of Anjali Ashok Sadhwani Vs. Ashok Kishinchand Sadhwani [AIR 2009 SC 1374], wherein the Hon'ble Apex Court transferred the petition filed by the wife considering the distance between two places and the fact that the wife has no one in the family to escort her.
vii. In the case of Sumita Singh Vs. Kumar Sanjay and another [(2001) 10 SCC 41] wherein the Hon'ble Apex Court transferred the petition filed by the wife holding that the convenience of the wife must be looked at.
viii. In case of N.C.V. Aishwarya VS. A.S.Saravana Karthik Sha [AIR 2022 SC 4318] the Hon'ble Apex Court has held that the generally in matrimonial case the convenience of the wife needs to be considered.
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13. The judgments of the Hon'ble Apex Court stated supra and considering the material on record and the fact that the petitioner is a lady aged about 30 years has to travel a distance of 137.4 kms to attend the proceedings at Athani in the suit filed by the husband for declaration that the petitioner is not the wife of the respondent. Though the respondent- husband has raised several contentions regarding inconvenience that would be caused to the husband and also filed an affidavit to that effect, generally it is the wife's convenience, which must be looked into while considering the transfer.
14. Under the above circumstances, looking into the travel time and wondering as to what could be the inconvenience that would be caused to the husband and looking into the aspect that the respondent is a government servant working at Karnataka Neeravari Nigam, who could be entitled to travel facilities and as a matter of fact, there is inconvenience caused to the petitioner and accordingly, the transfer petition filed by the wife
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needs to be allowed and for the reasons stated supra, this Court pass the following:
ORDER i. The civil petition filed by the wife is hereby allowed.
ii. The suit in O.S.No.1482/2013 pending on the file of I Additional Civil Judge and JMFC, Athani, Belgaum is withdrawn and the same is transferred to the Civil Judge and JMFC, Sindagi. No order as to costs.
Sd/-
JUDGE MBM