Andhra Pradesh High Court - Amravati
Dr.Undrajavarapu Indira Bharathi Roy vs Uppati Jyothi Kiran on 23 December, 2022
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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
TRANSFER CIVIL MISCELLANEOUS PETITION NO.181 OF 2022
AND
TRANSFER CIVIL MISCELLANEOUS PETITION NO.182 OF 2022
COMMON ORDER:-
The Transfer Civil Miscellaneous Petition No.181 of 2022 is filed by the petitioner by name Dr. Undrajavarapu Indira Bharathi Roy, who is the respondent in F.C.O.P.No.99 of 2022, on the file of Additional Family Court, Visakhapatnam District at Visakhapatnam, with a prayer to transfer the said case to the Judge, Family Court, Rajamahendravaram, East Godavari District.
2) The Transfer Civil Miscellaneous Petition No.182 of 2022 is filed by the petitioner by name Dr. Undrajavarapu Indira Bharathi Roy, who is the respondent in F.C.O.P.No.1693 of 2021, on the file of Additional Family Court, Visakhapatnam District at Visakhapatnam, with a prayer to transfer the said case to the Judge, Family Court, Rajamahendravaram, East Godavari District.
3) Both the Transfer Civil Miscellaneous Petitions are filed by the one and same petitioner. The respondent in both the Transfer Civil Miscellaneous Petitions are one and same i.e., 2 husband of the petitioner. The contents of the Transfer Civil Miscellaneous Petitions are one and same and even the counter of the respondent is also one and same. Therefore, it is just and necessary to dispose these two applications by a common order.
4) The case of the petitioner, in brief, insofar as the Transfer Civil Miscellaneous Petition No.181 of 2022 is concerned, that the deponent is the petitioner, who knows the facts of the case. The respondent is her husband. Her marriage with respondent was performed on 11.04.2016 at Vysakhi Function Hall, Visakhapatnam, as per Christian caste and custom in the presence of family members and well-wishers. The marriage was duly consummated and she joined with the respondent at Visakhapatnam. During the wedlock, they were blessed with a female child on 19.12.2016. They lived happily for some time and thereafter, respondent demanded her for additional dowry and also Rs.50,00,000/- to purchase a PG seat and she was subjected to harassment physically and mentally. She got a job as Civil Assistant Surgeon at Avidi PHC, East Godavari District. The respondent is working at Government Hospital, East Godavari District on contract basis. He made propaganda against her that she has illicit intimacy with her colleagues in Avidi where she is working.
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5) On 25.08.2021 at 11-50 A.M., respondent and others kidnapped her child, which is the subject matter in Crime No.282 of 2021 under Sections 498-A, 363, 451, 506 r/w 34 of Indian Penal Code ("I.P.C." for short) and 3 and 4 of Dowry Prohibition Act, on the report lodged by her. The police traced out the child from the respondent at Chilakaluripeta, Guntur District. He attacked the police and the said incident is the subject matter in Crime No.465 of 2021 under Section 353 r/w 34 of I.P.C. of Chilakaluripeta Police Station.
6) The petitioner has to appear in F.C.O.P.No.99 of 2022, which is filed for divorce by the respondent before the Additional Family Court, Visakhapatnam by travelling 350 Kilometers from Rajamahendravaram to Visakhapatnam. She has threat of life from the respondent and his family members. She is residing at her parents' house. Though she has accommodation in Avidi, still she is travelling from Rajamahendravaram to Avidi. Her parents are taking care of her minor child. She filed a maintenance case in M.C.No.14 of 2022 before the IV Additional Junior Civil Judge, Rajamahendravaram, which is pending. Petitioner is facing severe financial and physical problems to attend different Courts at Visakhapatnam. Hence, the petition.
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7) The respondent got filed a counter denying the averments in the petition and resisting the allegations raised against him and it is sufficient here to extract the substance of the counter, which is relevant in deciding these applications.
8) What all the allegations raised against him on the allegations of demand of dowry, etc. are all false. In fact, he found the petitioner along with her colleague, Ravi Kumar, on 19.11.2020, in a compromising position when he and his parents went to the house of the petitioner. Then, he questioned the same, but, he was beaten and he was also threatened for killing. He was informed that his minor child was under
harassment physically and psychologically with the help of petitioner's concubine, as such, he rushed Avidi village and picked up child. But, the police unnecessarily implicated him in kidnap case. The filing of cases against him is against the Police Standing Orders. Petitioner faced with several transfers on account of certain allegations against her. The brother of the petitioner committed offence under Section POCSO Act against the minor child of the petitioner and respondent, but the petitioner is trying to protect him. Though the Additional Family Court, Visakhapatnam, directed the petitioner to hand over the child to respondent, petitioner did not comply. Petitioner never 5 attended the Additional Family Court, Visakhapatnam where F.C.O.P.No.1693 of 2021 and F.C.O.P.No.99 of 2022 are pending. Respondent has every apprehension of the life threat in the hands of the petitioner. Even the brother of the petitioner gave life threat to the respondent at Government Hospital, Rajamahendravaram. The daughter of the petitioner and respondent i.e., minor child cannot be continued to stay along with the petitioner along with her brother, who committed offence under POCSO Act against the minor child. This Court while disposing C.R.P.No.621 of 2022 directed the Judge, Family Court to dispose the F.C.O.P.No.1693 of 2021, within a period of 8 months from the date of receipt of the copy of order. The petitioner approached this Court and obtained stay in this Transfer Civil Miscellaneous Petition to defeat the order in C.R.P.No.621 of 2022. Hence, the petition is liable to be dismissed.
9) The case of the petitioner in Transfer Civil Miscellaneous Petition No.182 of 2022 is similar as that of the Transfer Civil Miscellaneous Petition No.181 of 2022, but with additional allegation that the respondent filed F.C.O.P.No.1693 of 2021, on the file of the Additional Family Court, Visakhapatnam, under Sections 7, 8, 10, 17 and 25 of the 6 Guardians and Wards Act, 1890 for appointment of the guardianship of the minor child and it is very difficult for her to attend the Additional Family Court, Visakhapatnam physically and she is facing problems financially as well as physically, as such, it may be transferred to the Judge, Family Court, Rajamahendravaram.
10) The respondent got filed a counter in Transfer Civil Miscellaneous Petition No.181 of 2022 with the self-same contents.
11) Now, in deciding these Transfer Civil Miscellaneous Petitions, the point for determination is as to whether the petitioner in Transfer Civil Miscellaneous Petition No.181 of 2022 and Transfer Civil Miscellaneous Petition No.182 of 2022 is entitled for transfer of F.C.O.P.No.1693 of 2021 as well as F.C.O.P.No.99 of 2022, on the file of Additional Family Court, Visakhapatnam District at Visakhapatnam to the Judge, Family Court, Rajamahendravaram, East Godavari District, as prayed for?
Point:-
12) The learned counsel for the petitioner would contend in accordance with the averments of the affidavits in both the Transfer Civil Miscellaneous Petitions and he would relying upon 7 the judgment of the Hon'ble Supreme Court in N.C.V. Aishwarya vs. A.S. Saravana Karthik Sha in Civil Appeal No(s).4894 of 2022 (Arising out of S.L.P.(C) No(s).16465 of 2021). He would submit further that even the respondent is working at Government Hospital, Rajamahendravaram, on contract basis and it is not in dispute and if that be the case, there cannot be objections from the counter of the respondent to transfer the cases filed by him before the Additional Family Court, Visakhapatnam to the Judge, Family Court, Rajamahendravaram.
13) Learned counsel appearing for the respondent would contend according to the contents of the counter and would further submit that in view of the decision of the Hon'ble Supreme Court in Abhilasha Gupta vs. Harimohan Gupta, it is a case where the Hon'ble Supreme Court declined to grant the relief of transfer of a matrimonial dispute from one Court to another because the case was in advanced stage. He would submit that insofar as F.C.O.P.No.1693 of 2021 is concerned, respondent herein in the capacity of the petitioner therein obtained an order for interim custody of the child, which was challenged by the petitioner herein before the High Court of Andhra Pradesh at Amaravati in Civil Revision Petition No.621 of 8 2022 and the petitioner herein could succeed in the Civil Revision Petition, but the High Court of Andhra Pradesh at Amaravati directed the learned Judge, Family Court, to dispose of the O.P. within a period of 8 months from the date of receipt of a copy of the order and the said order was, dated 18.04.2022. But, soon after disposal of the Civil Revision Petition to stall the disposal of F.C.O.P.No.1693 of 2021, the petitioner filed this Transfer Civil Miscellaneous Petitions and obtained interim stay, as such, the order in Civil Revision Petition could not be complied by the learned Judge, Family Court. He would contend that it is the respondent, who has life threat in the hands of the petitioner and her brother, as such, the petition is liable to be dismissed.
14) As evident from the allegations and the counter allegations coupled with the copies of F.I.Rs. filed by the parties right from 2016 to 2022, it appears that there are acute ill- feelings between the petitioner and respondent. It is not within the provisions of this Court to decide the genuinity or otherwise of the allegations mentioned in the copies of F.I.Rs. There is no dispute about the factum of registration of a kidnapping case and under Section 498-A of I.P.C. case and further a case under Section 353 of I.P.C. against the respondent herein, but the 9 respondent herein is questioning the authority of the police in this regard. This Court cannot decide the same. Apart from this, there is also no dispute as evident from the copies of F.I.Rs. that the respondent herein claimed to have lodged a report with police alleging the offence under POCSO Act against the brother of the petitioner and further alleging that he made assault on the minor girl. So, the genuinity or otherwise of it cannot be the subject matter of this Transfer Civil Miscellaneous Petitions. There is no dispute that though the petitioner herein is working at Avidi, East Godavari District, but she is not staying there. But, she claimed to be with her parents at Rajamahendravaram. Simply because the respondent is said to be residing at Rajamahendravaram as contract basis employee, it cannot be held that his permanent resident will be at Rajamahendravaram. On the other hand, the respondent herein filed F.C.O.Ps. showing his address as permanent resident of Visakhapatnam.
15) This Court has gone through the decision of the Hon'ble Supreme Court in N.C.V. Aishwarya's case (1 supra). It is a case where initially the request of the wife before the High Court of Judicature at Madras in TR.C.M.P.No.473 of 2020 to transfer F.C.O.P.No.125 of 2020 filed by her husband before the 10 Family Court, Vellore to the Family Court at Chennai, was rejected. Later, she canvassed the matter before the Hon'ble Supreme Court. The Hon'ble Supreme Court dealing with the issue at para Nos.9 and 10 held as follows:
9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer.
10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.11
16) The learned counsel for the respondent would rely upon the decision in Abhilasha Gupta's case (2 supra). It is also a case where the wife in a matrimonial dispute filed an application before the Hon'ble Supreme Court for transfer of matrimonial dispute from the Court of the Additional District and Sessions Judge, Susner, Madhya Pradesh to the Family Court at Kota, Rajasthan. The Hon'ble Supreme Court dealt with a situation that in that particular case evidence of the petitioner in the dispute was recorded and the matter was posted for the evidence of wife and the distance between the places was less than 200 kilometers and took into consideration the offer made by the husband to pay expenses to the wife and declined to grant the relief and dismissed the same.
17) At the outset, this Court would like to make it clear that the distance between Rajamahendravaram to Visakhapatnam is around 200 kilometers but not 350 kilometers as canvassed by the petitioner. Apart from this, the Hon'ble Supreme Court in N.C.V. Aishwarya's case (1 supra) held that in matrimonial matters where the Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their 12 standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood, etc. and further convenience of the wife can generally be looked into.
18) Coming to the present case on hand, petitioner herself pleaded that she is a Civil Assistant Surgeon and the respondent is working on contract basis. So, as per pleadings on economic front, the petitioner is better placed than the respondent. As regards their behavioural pattern, both of them are indulging in raising serious allegations against each other and even gone to the extent of filing cases against each other. So, the relations between the petitioner and respondent are totally strained and there is any amount of bad blood appears to be flowing between them. Apart from this, coming to the behavioural pattern, there is no dispute that the respondent herein filed two F.C.O.Ps. at Additional Family Court, Visakhapatnam.
19) The respondent pleaded in the counter about the order in C.R.P.No.621 of 2022, but, none of the parties filed the copy of the order. This Court has looked into the order in the official website of the High Court of Andhra Pradesh and found certain facts there to the effect that the respondent herein in the 13 F.C.O.P.No.1693 of 2021 filed an Interlocutory Application in I.A.No.5 of 2022 to get the interim custody of the child and the petitioner herein resisted the prayer to give the custody and the learned Judge, Family Court, Visakhapatnam by order, dated 11.01.2022 ordered interim custody of the child to the respondent herein, who was the petitioner in F.C.O.P.No.1693 of 2021. Aggrieved by the same, the present petitioner filed the C.R.P.No.621 of 2022 and after conducting necessary enquiry, this Court reversed the order of the learned Judge, Family Court, Visakhapatnam and ordered the custody of the child to the petitioner herein and further ordered that the father shall have visiting rights to visit before girl weekly once and spent time with her on Sunday between 3-00 P.M. to 6-00 P.M. Those are all different things, but the main issue is that this Court keeping the interest of the minor child directed the learned Judge, Family Court, Visakhapatnam, to dispose of the main O.P. as expeditiously as possible in any event within a period of 8 months from the date of receipt of a copy of the order and further with an observation that both parties shall cooperate for early disposal of the matter. The said order was made on 18.04.2022 with a direction to issue certified copy by 20.04.2022. So, both the parties herein are bound to cooperate 14 the learned Judge, Family Court, Visakhapatnam to comply the order in C.R.P.No.621 of 2022 i.e., disposal within a period of 8 months from the date of receipt of a copy of the order.
20) Now these Transfer Civil Miscellaneous Petition Nos.181 and 182 of 2022 are filed by the present petitioner on 04.05.2022 after disposal of the said C.R.P.No.621 of 2022. As evident from the proceeding sheet, the petitioner obtained interim stay which is being extended from time to time staying the further proceedings in F.C.O.P.No.1693 of 2021 as well as F.C.O.P.No.99 of 2022. In the entire contents of the affidavits, the petitioner did not disclose the factum of time bound directions in C.R.P.No.621 of 2022. So, the fact remains is that on account of the stay granted by this Court in Transfer Civil Miscellaneous Petition No.182 of 2022, which is being extended from time to time, in F.C.O.P.No.1693 of 2021 there could not be any progress. Though this plea is raised by the respondent in the counter specifically, there is no rejoinder from the part of the petitioner. So, it is not a case where the petitioner has no knowledge about the directions in C.R.P.No.621 of 2022. So, it appears that the petitioner filed Transfer Civil Miscellaneous Petition No.182 of 2022 knowing fully well about the directions 15 in C.R.P.No.621 of 2022, as such, ultimately the progress in F.C.O.P.No.1693 of 2021 is hampered.
21) Under the circumstances, this Court is of the considered view that the petitioner should have been fair enough in the fitness of things to plead about the time bound directions that are given in C.R.P.No.621 of 2022 while approaching this Court by filing these two Transfer Civil Miscellaneous Petitions. Even according to the judgment of the Hon'ble Supreme Court in N.C.V. Aishwarya's case (1 supra), the Court can grant transfer of proceedings to avoid any conflicting judgments. It is to be noticed that the petitioner claimed to have filed a maintenance case at Rajamahendravaram which has nothing to do with the issues in F.C.O.P.No.1693 of 2021 and F.C.O.P.No.99 of 2022. So, it is not a case where these two F.C.O.Ps. and the maintenance case, ought to be decided by a one and same Judicial Officer. Apart from this, the petitioner approached the jurisdictional Magistrate in filing maintenance case as she is said to be residing outside the urban area of Rajamahendravaram and it is not a case where she approached the Judge, Family Court for claiming maintenance under Section 125 of the Code of Criminal Procedure. So, when the petitioner is residing outside the urban 16 limits of Rajamahendravaram city, she cannot seek to transfer the cases to Judge, Family Court, Rajamahendravaram. If she is residing within the city limits, she would have approached the Family Court even in filing maintenance case on behalf of the minor child.
22) Viewing from any angle and looking into the facts and circumstances, this Court is of the considered view that it is not at all desirable, in the interest of justice, to grant the relief prayed. As the parties are fighting with each other with all serious allegations indulging in filing cases against each other, it is necessary in the interest of justice, not to grant the relief prayed. Failure on the part of the petitioner to plead the factum of C.R.P.No.621 of 2022 orders in these applications would disentitle the petitioner to claim the relief.
23) Needless to point out here that what all the observations that are made by this Court are only deciding these two Transfer Civil Miscellaneous Petitions and these observations shall not be binding in any way on the learned Judge, Family Court, Visakhapatnam, while disposing F.C.O.P.No.1693 of 2021 and F.C.O.P.No.99 of 2022 on merits. Hence, I see no reason to grant the relief.
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24) In the result, both the Transfer Civil Miscellaneous Petitions are dismissed. There shall be no order as to costs.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.23.12.2022.
PGR 18 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU COMMON ORDER IN Tr.C.M.P.NO.181 OF 2022 AND Tr.C.M.P.NO.182 OF 2022 Date: 23.12.2022 PGR