Telangana High Court
Kommu Alias Dommati Mounika vs Kommu Srinivas on 8 August, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
Tr.C.M.P.No.24 of 2022
ORDER:
The petitioner/wife has filed this Transfer Civil Miscellaneous Petition under Section 24 of the Civil Procedure Code, 1908 (for short 'CPC') against the respondent/husband with a prayer to withdraw HMOP No.70 of 2021 pending on the file of the learned Senior Civil Judge at Peddapalli, and to transfer the same to the learned Judge, Family Court at Warangal.
2. Notice is served on the respondent. He has filed a detailed counter affidavit denying the petition averments. Heard learned counsel for the petitioner and the respondent. The submissions made on either side have received due consideration of this Court. Perused the material available on record.
3. The petitioner/wife has filed this Tr.CMP alleging that she is the legally wedded wife of the respondent, their marriage took place on 26.06.2011, in the year 2013 the respondent left to the United States of Page 2 of 8 AVRJ Tr.CMP No.24 of 2022 America (USA) without informing her and after much deliberation took her to USA, lived there for some and out of their wedlock, she gave birth to two children, later she came back to India on 18.04.2018. In fact, after reaching India, the respondent left her and her two minor children in the Airport itself and her father took her from the Airport, the respondent has taken away the passports, visas, Birth certificates of herself and her children and ever since then she along with her two minor children are living with her parents. There was considerable harassment, she has filed a criminal case, vide CC No.967 of 2018 pending on the file of the learned IV Additional Judicial First Class Magistrate at Warangal for the offence punishable under Sections 498-A IPC and under Sections 3 and 4 of the Dowry Prohibition Act against the respondent. She has also filed a restitution of conjugal rights case, vide OP No.37 of 2019 on the file of the Judge, Family Court at Warangal and also filed OS No.1 of 2019 on the file of the Judge, Family Court at Warangal claiming maintenance from her husband. While all these matters are pending at Warangal, the respondent/husband has filed divorce OP, vide HMOP Page 3 of 8 AVRJ Tr.CMP No.24 of 2022 No.70 of 2021 on the file of the Senior Civil Judge at Peddapalli. It is causing lot of inconvenience to the petitioner to commute from Warangal to Peddapalli and accordingly requested for transfer of the said matter to Warangal.
4. The respondent/husband has filed a detailed counter denying the petition averments stating that the petitioner has deliberately suppressed the facts. In fact, the respondent has obtained divorce from a competent Court in USA and that filing of OP at Peddapalli is a mere formality. The petitioner's father is a retired police officer and has been harassing the respondent. There are no merits in the petition. If the matter is transferred to Warangal, the petitioner's father may engage antisocial elements against the respondent and prayed for dismissal of the transfer petition.
5. On a careful perusal of the averments in the counter, it is only filed by the father of the respondent as his GPA holder. The factum of the marriage, birth of two children and the petitioner living along with the respondent Page 4 of 8 AVRJ Tr.CMP No.24 of 2022 in USA for some time etc., are not in dispute. Further, the contention of the respondent is that he has obtained divorce from competent court of jurisdiction in USA and filing of divorce OP No.70 of 2021 on the file of the Senior Civil Judge at Peddapalli is a mere formality and prayed for dismissal of the petition.
6. The learned counsel for the respondent/ husband contends that the petitioner's father is a retired police officer and if the matter is transferred from Peddapalli to Warangal, he may engage unsocial elements, there is a threat to the life of the respondent. However, the respondent has not filed any document to show that on previous occasions, there was such an attempt on the respondent when he appeared in other case before the Court at Warangal. It is also an undisputed fact that the petitioner has filed a maintenance case, vide OS No.1 of 2019 and restitution of conjugal rights case, vide OP No.37 of 2019, both the matters are pending on the file of the Judge, Family Court at Warangal. Similarly, she has filed Page 5 of 8 AVRJ Tr.CMP No.24 of 2022 CC No.967 of 2018 pending on the file of the learned IV Additional Judicial First Class Magistrate at Warangal.
7. Section 19 (iii)(a) of Hindu Marriage Act, 1955 contemplates that the wife is entitled to file and prosecute the matrimonial disputes before the jurisdictional Court within whose limits she is living. Undisputedly, the petitioner/wife along with her minor children is living with her parents at Warangal. Though it is alleged by the respondent that there is threat to his life in the hands of petitioner's father, who is a retired police officer, as indicated above, no piece of paper is filed as to lodging of any complaint before the police concerned or reporting of any such incident to the concerned Court. Be it stated that the respondent is presently residing in USA and the counter is filed by his father as GPA holder, whereas the petitioner is attending all the matrimonial disputes as a party, she has to look after her maintenance and the maintenance of minor children
8. In similar circumstances, the Hon'ble Supreme Court of India in Sangeetha alias Shreya v. Prasant Vijay Page 6 of 8 AVRJ Tr.CMP No.24 of 2022 Wargiya1 held that we are still living in a civilized society and we see no substance in the submission that there would be danger to his life if the respondent has to attend the Court. If any threat is given, the respondent can always complain to the Court and we are sure that his complaint if one made will be considered on its own merits. Between husband and wife, the convenience of wife must prevail particularly when the wife has 2½ year old child.
9. The Hon'ble Supreme Court in Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi2 while dealing with transfer proceedings of a matrimonial dispute, held that in this type of matters, the convenience of the wife is to be preferred over the convenience of the husband.
10. Reverting back to the facts of the present case, as stated above, the wife has filed maintenance case, restitution of conjugal rights case and both the cases are pending before the learned Judge, Family Court at Warangal, both the cases were filed much before the 1 2004 (13) SCC 407 2 (2005) 12 SCC 237 Page 7 of 8 AVRJ Tr.CMP No.24 of 2022 husband has filed his divorce HMOP No.70 of 2021 on the file of the Senior Civil Judge at Peddapalli. That apart, the wife has also filed a criminal case in CC No.967 of 2018 and the same is pending on the file of the IV Additional Judicial First Class Magistrate at Warangal. The husband or his GPA holder has to attend all these cases at Warangal and if one more matter is transferred from Peddapalli to Warangal, it would be convenient to the husband also. It is also not the case of the respondent that the petitioner is either gainfully employed or that he is paying maintenance to the petitioner and her minor children.
11. Therefore, considering the scheme of Hindu Marriage Act, convenience of petitioner/wife and her minor children, provisions of Section 24 of CPC, I find justification in the request of the petitioner/wife for withdrawal and transfer of HMOP No.70 of 2021 from the file of the Senior Civil Judge at Peddapalli to the Judge, Family Court at Warangal. However, if any threat is given to the respondent, he may complain either to the Court or Page 8 of 8 AVRJ Tr.CMP No.24 of 2022 before the police concerned and I am sure that any such complaint if made will be considered on its own merits.
12. In the result, the Transfer Civil Miscellaneous Petition is allowed. HMOP NO.70 of 2021 pending on the file of the learned Senior Civil Judge, Peddapalli, is ordered to be withdrawn and transferred to the file of the Judge, Family Court at Warangal, for disposal in accordance with law along with OS No.1 of 2019 (maintenance case) and OP No.37 of 2019 for restitution of conjugal rights. The learned Senior Civil Judge, Peddapalli shall transmit the entire record in HMOP No.70 of 2021 duly indexed within one month from the date of receipt of a copy of this order. However, there shall be no order as to costs.
As a sequel, interlocutory applications, if any pending in this Tr.CMP shall stand closed.
__________________________________ A. VENKATESHWARA REDDY, J.
Date: 08.08.2022 Isn