Karnataka High Court
Smt. Shravanti Alias Nayana (Manyata) ... vs Shri Sachin S/O Shashidhara Neelammath on 17 April, 2023
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
CIVIL PETITION NO. 100143/2022
BETWEEN
SMT. SHRAVANTI @ NAYANA (MANYATA)
W/O SACHIN NEELAMMATH,
AGE: 24 YEARS, R/O DOOR NO.38,39,3RD FLOOR,
CENTRAL EXCISE LAYOUT, HEGDE NAGAR,
BANGALORE-77,
NOW AT: DIDDAGI VILLAGE, TQ: SINDHANUR,
DIST: RAICHUR.
...PETITIONER
(BY SRI. S S YALIGAR, ADVOCATE)
AND
SHRI. SACHIN S/O SHASHIDHARA
NEELAMMATH. AGE:30 YEARS,
R/O DOOR NO.38,39,3RD FLOOR,
ANNAPURNA CENTRAL EXCISE LAYOUT, HEGDE NAGAR,
CHINNAPPA
DANDAGAL BANGALORE-77.
Digitally signed by
ANNAPURNA
CHINNAPPA DANDAGAL
Location: HIGH COURT
OF KARNATAKA
DHARWAD
...RESPONDENT
(BY SRI. SANTOSH B MALAGOUDAR., ADVOCATE)
THIS CIVIL PETITION IS FILED U/SEC.24 OF CPC,
PRAYING TO WITHDRAW THE MATRIMONIAL CASE NO.86/2021
PENDING ON THE FILE OF CIVIL JUDGE, SENIOR DIVISION,
GANGAVATHI, AT GANGAVATHI, AND TRANSFER THE SAME TO
THE FAMILY COURT, SINDHANUR, AT SINDHANUR FOR
DISPOSAL IN ACCORDANCE WITH LAW. BY ALLOWING THIS
CIVIL PETITION, WITH COST THROUGH OUT, IN THE ENDS OF
JUSTICE AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, COMING FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THIS COURT, PRONOUNCED THE FOLLOWING:
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ORDER
The present petition is filed under Section 24 of the Code of Civil Procedure by the wife seeking to withdraw M.C. No.86/2021 pending on the file of Civil Judge (Sr. Dn.), Gangavathi and transfer the same to Family Court, Sindhanur.
2. It is stated by the petitioner that the petitioner is the legally wedded wife of the respondent and the marriage of the petitioner with the respondent was solemnized on 03.11.2019 and that the respondent has neglected the petitioner and constantly harassed the petitioner and that the petitioner is staying away from her matrimonial house and as she could not maintain herself, filed Crl. Misc. No.683/2022 before the Principal Civil Judge and JMFC, Sindhanur and interim maintenance of Rs.10,000/- per month has been awarded in the said criminal miscellaneous. According to the petitioner, the maintenance granted by the Family Court has also not been paid by the respondent. That the respondent -3- has filed M.C. No.86/2021 before the Civil Judge (Sr. Dn.), Gangavathi for dissolution of marriage on the ground that the petitioner has left the matrimonial house without reasonable cause. It is stated that the distance between Sindhanur and Gangavathi is about 60 kms and the petitioner being a lady, she is not in a position to attend the Court at Gangavathi and hence, has moved this application for transfer of the case from Gangavathi to Sindhanur, where she is now residing along with her parents.
3. On the issuance of notice by this Court, the respondent appeared and filed his objections. The marriage between the petitioner and the respondent and the interim maintenance awarded by the Prl. Civil Judge & JMFC, Sindhanur, in Crl. Misc. No.683/2022 are admitted. It is also admitted that the respondent has filed M.C. No.86/2021 for dissolution of marriage and the same is pending consideration before the Court of Gangavathi. It is specifically contended by the respondent that the petitioner is working as a Teacher in Bhavana English Medium School, Rayadurgam, -4- Andhrapradesh and stated that she is not the resident of Sindhanur and has produced the aadhar card to show that the petitioner is residing at Andhrapradesh. It is further stated that the distance between Gangavathi and Sindhanur is about 48 kms and in the event, the petition is transferred to Sindhanur the respondent-husband would be put to hardship as he is suffering from "spinal muscular atrophy-Type-III left quadriceps muscle" and he requires the assistance of another person every time when he attends the Courts proceedings and to that effect, he has produced the disability certificate as Annexure-R2. The spinal muscular atrophy-Type-III left quadriceps muscle, which is a rare progressive causes, which causes progressive weakness and if the petition is transferred to Sindhanur, more hardship would be caused to the respondent-husband due to disability.
4. It is further contended that the petitioner- wife is neither residing at Sindhanur nor has she been employed at Sindhanur as stated by the petitioner and filing of the petition is only to harass the -5- respondent. It is further stated that against the order passed in Crl. Misc. No.683/2022, the respondent- husband has preferred Crl.A. No.56/2022 before the Principal District and Sessions Judge, Raichur and the District Court has stayed the proceedings in Crl. Misc. No.683/2022 and thereby, the respondent sought to dismiss the petition.
5. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent and perused the material on record carefully.
6. The sum and substance of the argument of the learned counsel for the petitioner is that there is inconvenience for the petitioner being a lady as she has to travel a distance of 60 kms from Sindhanur to Gangavathi to defend the petition filed by her husband for dissolution of marriage.
7. The jurisdiction of this Court under Section 24 of CPC is invoked which gives general power of transfer and withdrawal. It is relevant to refer Section 24 of CPC, which reads as under:
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"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.
(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 -7- 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."
8. The cardinal principles of exercise of power under Section 24 of CPC is that, the ends of justice would demand the transfer of the suit, appeal or other proceedings. In matrimonial matters, wherever 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 standard of life prior to the marriage and -8- 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. Generally, it is the wife's convenience which must be looked at while considering transfer. Though the Courts tend to lean towards the wife's convenience for transfer, the Court cannot lose sight and must attempt to strike a balance between the rights of the parties and not blindly accept the wife's assertion since the present case is where the husband is physically disabled. The mere fact that the wife may have to travel little more distance to appear before the Court at Gangavathi in M.C. No.86/2021, but this Court cannot lose sight of the fact that the husband is a physically challenged person and the inconvenience of the husband would be of more weightage than the inconvenience of the wife due to the physical disability of the respondent-husband.
9. During the course of the arguments, learned counsel for the petitioner has admitted that the respondent-husband is suffering from physical -9- disability called spinal muscular atrophy-Type-III left quadriceps muscle. The disability certificate at Annexure-R2 reveals that the respondent-husband suffers a progressive disease which cause progressive weakness and would make it evident that the respondent-husband is suffering from a rare disease. The question would be, "whether the transfer sought by the wife stating that it is inconvenient for her to travel to Gangavathi, which is at distance of 60 kms forms more weightage than the inconvenience caused to the respondent-husband who is suffering from physical disability?" This Court is wondering as to what could be the inconvenience to seek transfer only on account of travelling distance from Sindhanur to Gangavathi, which is about 60 kms.
10. The learned counsel for the respondent- husband fairly submits that the husband is ready to bear the travel expenses of the wife to attend the case at Gangavathi, whenever she appears before the Court.
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11. The fair submission of the learned counsel for the respondent is taken on record.
12. In light of the foregoing reasons, the petition filed by the wife under Section 24 of the CPC is not a fit case to allow the petition for transfer. Accordingly, this Court pass the following:
ORDER The civil petition filed by the wife is hereby disposed of with a direction to the respondent- husband to pay a sum of Rs.500/- as traveling expenses to the wife on each date, whenever she would appear before the Court in M.C. No.86/2021 pending on the file of Civil Judge, Senior Division at Gangavathi and the parties to cooperate in expeditious disposal of the petition.
Sd/-
JUDGE MBM