Andhra HC (Pre-Telangana)
Smt. P. Himabindu vs P. Jayasimharaja on 27 October, 2005
Equivalent citations: 2006(1)ALD44, 2005(6)ALT336, I(2006)DMC118
Author: G. Chandraiah
Bench: G. Chandraiah
ORDER G. Chandraiah, J.
1. Heard both the counsel.
2. The petitioner is the wife. She filed this petition under Section 24 of C.P.C. seeking withdrawal of O.P. No. 13/2004 filed by the respondent, who is her husband, for restitution of conjugal rights and O.S. No. 153/2004 filed by her for maintenance and for return of plaint A and B Schedule articles and documents, both on the file of Principal Senior Civil Judge, Court, Chittoor and to transfer both the matters to Family Court, Hyderabad.
3. The petitioner in the affidavit filed in support of the transfer petition stated that the marriage of the petitioner with the respondent was performed on 18-12-2000 in Hotel Viceroy, Hyderabad as per Hindu customs and rites. Subsequent to the marriage, the respondent and his family members have harassed the petitioner for dowry and the respondent left the petitioner at Hyderabad and the marriage is also not consummated. The respondent with a view to get rid of the petitioner, filed O.P. No. 13/2004 for restitution of conjugal rights, though he has no interest. The petitioner filed counter in the matter and contesting the same. Petitioner also filed O.S. No. 153/2004 on the file of same court for reliefs of maintenance and to direct the respondent and his father to return the plaint A and B schedule articles and documents and the same is pending. It is stated that earlier she filed Tr.C.M.P. No. 387/2004 seeking transfer of only O. P. No. 13/2004 and by oversight she could not instruct the counsel for seeking transfer of O.S. No. 153/2004 and however, the said petition was dismissed as premature. The respondent is residing at Delhi on his employment. The petitioner is facing difficulty to go to Chittoor to attend the cases. The parents of the petitioner are at Saudi Arabia and she being a lady having no acquaintance in Chittoor, there is no safety for her to travel all alone for the adjournments and she has no assistance to go to Chittoor. With these averments, the petitioner sought for transferring of the above said cases from Chittoor to Hyderabad.
4. The respondent filed a detailed counter and denied the allegations with regard to harassment. It is stated that their marriage took place on 18-12-2000 at Hyderabad. In the earlier Tr.C.M.P. No. 387/2004 filed by the petitioner, she did not disclose valid grounds for allowing the petition and it is only stated that the if O.P. No. 13/2004 is transferred from Chittoor to Hyderabad, no inconvenience will be caused to the respondent, as he is working at Delhi. The said transfer petition was dismissed. It is further stated that the respondent filed O.P. No. 13/2004 for restitution of conjugal rights and as stated by the petitioner, the marriage was not consummated. Having refused the husband to have the happy marital life, there is no justification for the petitioner herein to seek relief by way of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act and it is stated that the petitioner having filed the O.P. No. 153/2004 for maintenance at Chittoor, has no justification to seek the transfer of the case to Hyderabad. Admittedly, the petitioner has been residing at Hyderabad separately by way of voluntary desertion of her husband and there is no justification at all for the petitioner to refuse to live with her husband. In the counter affidavit, the respondent has denied the allegations made by the petitioner in O.P. No. 153/2004 for maintenance and stated reasons for filing of O.P. No. 13/2004 for restitution of conjugal rights. It is stated that in the guise of interim orders in O.P. No. 153/2004, the petitioner has taken back all the belongings to her from his house at Bangarupalem under Court orders and thereafter tried to withdraw the maintenance petition and he has opposed the same. It is stated that she has no home at Hyderabad and the question of living in her own house at Hyderabad does not arise. It is stated that as on today, the respondent is transferred from Delhi to Bangalore. For the purpose of attending in the above matters all the witnesses are from the very same area in Chittoor District and it is impossible for all the witnesses to be produced at Hyderabad and therefore, the contention that there is no difference between Hyderabad and Chittoor is irrelevant. With these averments, the respondent sought for dismissal of the transfer petition.
5. The petitioner filed a reply and denied all the allegations made in the counter affidavit.
6. The learned counsel Sri P. Satyanarayana appearing for the petitioner submitted that the marriage of the petitioner was performed at Hyderabad and subsequently she was harassed for more dowry and the respondent has left her at Hyderabad. The petitioner is staying at Hyderabad in her maternal aunt's house and her younger brother is also staying at the same place. It is stated that the husband is not staying at Chittoor, where the case is pending and that now he is working at Bangalore. He further submitted that the parents of the petitioner are in Saudi Arabia and the petitioner being lady having no male assistance, finding it difficult to travel to Chittoor to attend the cases. He submitted that in matrimonial matters, the convenience of wife has to be given importance and in support of his contention, he relied on the judgment of the Apex Court in Rachana Kanodia v. Anuk Kanodia, 2001 (7) Supreme 96. With these submissions, he sought for transferring of the above said cases.
7. On the other hand Sri M.R.K. Chowdary, learned Senior Counsel, appearing for the respondent submitted that the petitioner is staying at Hyderabad on her own and she has not been deserted and as such there are no bona fides on her part. The petitioner is presently working in ICICI Bank, Nagrjunanagar, Punjagutta, Hyderabad, staying with her maternal aunt and the younger brother of the petitioner is also staying at the same place. He stated that the Court fit Chittoor is the proper Court. He stated that the grounds in the earlier transfer petition, which was dismissed and the grounds in the present transfer petition are one and the same and there are no new grounds. Though at the time of disposal of earlier transfer petition it is stated that steps are being taken to withdraw O.P. No. 153/2004 from the Court at Chittoor with liberty to file fresh suit at Hyderabad, no such steps have been taken. It is submitted that the petitioner did not state why she is staying at Hyderabad as her parents are also not at Hyderabad and further the marriage was also not consummated. It is stated that in the earlier transfer petition the petitioner did not seek for transfer of O.P. No. 153/2004. He finally stated that there are no grounds to transfer the cases. In support of his contention, he relied on a single Judge judgment of the Madras High Court in Sudha v. Vaidyanathan, wherein certain guidelines were framed in considering transfer petitions in matrimonial matters. Relying on the Division Bench judgment of the Madhya Pradesh High Court in Union Carbide Corporation v. Union of India, ., the learned Senior Counsel submitted that the jurisdiction under Section 24 of C. P.C. has to be exercised with extreme caution and the plaintiff could not be stopped from going with his suit in his chosen forum, where he has right of action against the defendants. As a general rule, the Courts should not interfere unless the expenses and the difficulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular Court for the purpose of causing injustice. He also stated that subsequent employment of the petitioner cannot be a ground to transferee stated that since there are no bona fides on the part of the petitioner, the transfer petition is liable to be dismissed.
8. From the above it could be seen that the marriage of the petitioner with the respondent was performed on 18-12-2000 at hotel Viceroy, Hyderabad and the marriage was not consummated and as per the case of the petitioner, she was harassed by the respondent and his family members for dowry and the respondent left her at Hyderabad. The respondent though denied the aspect of harassment and that he left the petitioner at Hyderabad admitted that the petitioner is residing at Hyderabad. His case is that without there being any valid reasons, the petitioner has voluntarily been residing at Hyderabad. He further stated that the petitioner is not permitting the respondent to lead marital life and their marriage was not consummated and therefore, he filed O.P. No. 13/2004 for restitution of conjugal rights. He also stated that he is presently transferred from Delhi to Bangalore and residing there.
9. This is a matrimonial matter and admittedly as per the case of both the parties, the petitioner is residing at Hyderabad. However, the validity or otherwise of the stay at Hyderabad or the allegations of harassment, cannot be gone into in this transfer petition, as the same is subjudice in O.P. No. 13/2004. The husband is also admittedly not residing at Chittoor and he is working at Bangalore. Further the case of the petitioner is that her parents are abroad and she is finding it difficult to travel to Chittoor to attend the cases. Though the respondent contended that most of the witnesses in O.P. No. 13/2004 filed by him were from Chittoor, that cannot be a ground to reject transfer. With regard to earlier transfer petition, from the judgment it could be seen that it was dismissed as premature. Further marriage of the parties was performed at Hyderabad. With regard to the expenditure that husband is going to be incurred is concerned, it is to be seen that the respondent is well placed and is working at Bangalore and further there is no question of any injustice being caused or that the transfer is being sought to cause injustice. With regard to contention that the petitioner did not take any steps to withdraw the suit filed by her for maintenance, as stated by her in earlier transfer petition is concerned, it is to be seen that the respondent himself has stated that he opposed for such withdrawal. Therefore, considering all these factors, I am of the opinion that the convenience of the wife has to be given due weightage.
10. Further in the decision reported in Rachana Kanodia' scase (1 supra), the facts reveal that the husband filed matrimonial proceedings at Delhi and the wife on the ground of convenience, that she is residing at Kanpur, sought transfer of the case to Kanpur. The husband opposed the same on the ground that the matrimonial home was in Delhi and that all the witnesses are in Delhi. Considering these facts and circumstances, the Apex Court held that in transfer petition, the convenience of the wife has to prevail and also the issue of marriage. The relevant portion of the judgment is extracted as under for ready reference:
"3. In our view, in this transfer petition, the convenience that has to prevail is the convenience of the wife and the issue of the marriage, and there is no doubt, that looked at thus, the transfer petition must succeed."
11. In another judgment of the Apex Court reported in Sumita Singh v. Kumar Sanjay, , the facts reveal that the wife was residing at Delhi and the husband filed matrimonial proceedings at far off place from Delhi. In the said case, the wife was working at Delhi. Considering these facts, the Apex Court held at paragraph No. 3 as under
"It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute."
12. Coming to the facts of the present case as stated above, the wife is residing at Hyderabad and their marriage was also performed at Hyderabad and according to the learned counsel for the respondent, the wife is also working at Hyderabad. On the ground of inconvenience, as she has no male assistance to travel from Hyderabad to Chittoor, she sought for transfer. Therefore, considering these facts and circumstances and in view of the judgments of the Apex Court referred to above, the transfer petition deserves to be allowed.
13. Coming to the judgment of the Madras High Court referred to 2 supra, no doubt the learned single Judge has framed certain guidelines for consideration, while dealing with transfer petitions in matrimonial cases under Section 24 of C.P.C., relying on judgments of the Apex Court. I have carefully perused the judgment of the Apex Court relied by the learned single Judge of the Madras High Court in Overseas Bank v. Chemical Construction Company, (1979) 11 SCC 96 Kalpana Deviprakash Thakar v. Dr. Deviprakash Thakar, and Shakuntala Modi v. Om Prakash Bharuka, . A reading of the said judgments would disclose that the facts therein are quite different from that of the present case. Therefore, the guidelines framed by the learned single Judge of the Madras High Court cannot be made applicable to the facts of the present case and the facts and circumstances of the present case are entirely different. Further it is to be seen that no strait jacket formula or guidelines can be framed while considering the transfer petitions, particularly the matrimonial matters and each case has to be judged on its own merits and the facts and circumstances of the case and following guidelines framed in a particular case, some times may result in travesty of justice, which is not spirit of adjudication. Further as per the judgment of the Division Bench of the Madhya Pradesh High Court in Union Carbide Corpn. case (3 supra), the jurisdiction under Section 24 has to be exercised sparingly. Considering the facts and circumstances of the present case, I am of the view that the petitioner deserves the transfer of the case from Chittoor to Hyderabad and, therefore, I am inclined to exercise the jurisdiction under Section 24 of C.P.C.
14. In view of the above facts and circumstances of the case and considering the convenience of the wife and also in the light of the judgments of the Apex Court, I pass the order as under:
"O.P. No. 13/2004andO.S. No. 153/2004 are hereby withdrawn from the file of Principal Senior Civil Judge, Court, Chittoor and transferred to the Family Court, Hyderabad for being tried and disposed of in accordance with law".
15. The transfer petition is accordingly allowed. No costs.