Telangana High Court
Puli Swapna vs Puli Rakesh on 16 August, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
Tr.C.M.P.Nos.213 of 2021 and 75 of 2022
COMMON ORDER:
Transfer Civil Miscellaneous Petition (Tr.CMP) No.213 of 2021 is filed by the petitioner/husband against the respondent/wife under Section 24 of the Civil Procedure Code, 1908 (for short 'CPC') with a prayer for withdrawal of MC No.35 of 2021 pending on the file of the learned Judge, Family Court at Khammam and to transfer the same to the Court of learned Judge, Family Court at Warangal to be tried along with FCOP No.81 of 2021 pending on the file of that Court.
2. Whereas, Tr.CMP No.75 of 2022 is filed by the petitioner/wife against the respondent/husband under Section 24 of CPC with a prayer for withdrawal of FCOP No.81 of 2021 pending on the file of the learned Judge, Family Court at Warangal and to transfer the same to the learned Judge, Family Court at Khammam to be tried along with MC No.35 of 2021 pending on the file of that Court.
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3. These two Tr.CMPs are filed under Section 24 of CPC by the husband and wife as indicated above, accordingly, it is proposed to dispose of both the Tr.CMPs together, through this common order.
4. Heard learned counsel on both sides. Perused the material available on record. The submissions made on either side have received due consideration of this Court.
5. For the sake of convenience, the parties are hereinafter referred to as husband and wife.
6. The husband has filed Tr.CMP No.213 of 2021 with a prayer to withdraw MC No.35 of 2021 filed by the wife pending on the file of the learned Judge, Family Court at Khammam and to transfer the same to the learned Judge, Family Court at Warangal to be tried with FCOP No.81 of 2021. It is alleged in the supporting affidavit of the husband that he has married another woman earlier, that marriage ended in divorce, thereafter, he has married his wife on 31.03.2019. Immediately after the marriage, she joined him at Warangal to lead marital life and they led happy marital life for some time. Thereafter, disputes Page 3 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 arose due to mental agony subjected by the wife, his father died on 23.09.2020, she came to the burial ground along with her brother and there also she created nuisance. She has filed a criminal case before the Women Police Station at Warangal against his family members, vide Crime No.139 of 2020. Thereafter, he has filed FCOP No.81 of 2021 for restitution of conjugal rights. On receipt of notice, she has filed MC No.35 of 2021 before the Judge, Family Court at Khammam as a counter blast. He is attending the said MC case, but since his parents are suffering from ill-health, it is not possible for him to attend the maintenance case before the learned Judge, Family Court at Khammam. As the restitution of conjugal rights case FCOP No.81 of 2021 and the criminal case in Crime No.139 of 2020 are pending at Warangal, he requested for withdrawal of MC No.35 of 2021, which is pending on the file of the learned Judge, Family Court at Khammam and to transfer the same to the learned Judge, Family Court at Warangal.
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7. The wife has filed a detailed counter denying the petition averments alleging that she was necked out of her matrimonial house on 14.06.2019 by the husband and his family members. All her efforts to join the company of husband are not fructified, she was compelled to lodge a criminal case before the Women Police Station, Warangal Urban, vide Crime No.139 of 2020 for the offences punishable under Sections 498-A, 506 of the Indian Penal Code, 1860 (for short 'IPC') and under Section 4 of the Dowry Prohibition Act, 1961. As a counter blast, her husband has filed FCOP No.81 of 2021 with all false allegations. She is a house wife, she has no capacity to survive on her own, and as such she has also filed the Maintenance Case No.35 of 2021 before the learned Judge, Family Court at Khammam. She has also filed DVC No.60 of 2021, which is pending on the file of the Judicial First Class Magistrate at Khammam. She is residing at Khammam, which is at a distance of 130 k.m. from Warangal. It is causing lot of inconvenience for her to commute from Khammam to Warangal on each and every Page 5 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 date of hearing to attend FCOP No.81 of 2021, accordingly, prayed for dismissal of Tr.CMP No.213 of 2021.
8. The wife has filed Tr.CMP No.75 of 2022 with a prayer for withdrawal of FCOP No.81 of 2021 which is pending on the file of the learned Judge, Family Court at Warangal and to transfer the same to the learned Judge, Family Court at Khamamm to be tried along with MC No.35 of 2021 pending on the file of that Court.
9. The averments of the affidavit filed in support of Tr.CMP No.75 of 2022 are almost replica of counter filed by the wife in Tr.CMP No.213 of 2021, accordingly, prayed for withdrawal of FCOP No.81 of 2021 from the file of the learned Judge, Family Court at Warangal and to transfer the same to the learned Judge, Family Court at Khammam, where MC No.35 of 2021 filed by her is pending.
10. Undisputedly, even as per the cause title in FCOP No.81 of 2021, wife is living along with her parents at Khammam. It is an undisputed fact that initially, the wife has filed a case in Crime No.139 of 2020 under Sections 498-A and 506 of IPC under Section 4 of the Dowry Page 6 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 Prohibition Act before the Women Police Station, Warangal Urban. Thereafter, the husband has filed FCOP No.81 of 2021 before the Family Court at Warangal. Later, the wife has also filed MC No.35 of 2021 before the learned Judge, Family Court at Khammam and also filed DVC No.60 of 2021 before the learned Judicial First Class Magistrate at Khammam.
11. Thus, in respect of matrimonial disputes between the parties, two matters i.e., criminal case in Crime No.139 of 2020 and FCOP No.81 of 2021 are pending before the Court at Warangal, whereas MC No.35 of 2021 and DVC No.60 of 2021 are pending before the Courts at Khammam. It is also an undisputed fact that the distance between Khammam and Warangal is roughly 130 k.m.
12. It is not the case of the husband that his wife is gainfully employed or that she is able to survive on her own or that he has been paying maintenance to her regularly. Nowhere either in his affidavit filed in support of Tr.CMP No.213 of 2021 or in the pleadings in FCOP No.81 of 2021 Page 7 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 it is mentioned that his wife is able to survive on her own or he has been paying maintenance to her.
13. The learned counsel for the husband strenuously contends that initially the husband has filed OP for restitution of conjugal rights and it is only a counter blast to harass the husband, his wife has filed maintenance case and DVC case at Khammam and that the husband has to look after his mother and he is a private employee and that it is causing lot of hardship to commute from Warangal to Khammam on each and every date of hearing and relied on the principles laid in the following decisions seeking withdrawal and transfer of MC No.35 of 2021:
i) Munna Lal and etc. v. State Opposite
Parties1;
ii) Savitri v. Govind Singh Rawat2; and
iii) Smt. Dipika Sharma (Chakraborty) v. Sri Sudip Sharma3.
14 i). In Munna Lal's case (first supra), a Division Bench of Allahabad High Court while dealing with the general power 1 Air 1991 Allahabad 189 2 (1985) 4 SCC 337 3 2017 (1) GauLJ 630 Page 8 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 of transfer under Section 24 of CPC read with Section 7 (1) of the Family Courts Act, 1984, held that when Family Court is exercising powers and jurisdiction under Chapter IX of the Criminal Procedure Code, 1973, it is criminal court equivalent to the Magistrate First Class and High Court will have the powers to transfer the case from one Family Court to another under Section 407 of the Cr.P.C.
ii). In Savitri's case (second supra), the Apex Court dealt with the jurisdiction of a Magistrate under Chapter-IX of Cr.P.C. even after introduction of Family Courts Act, 1984 and held that in the absence of any express prohibition under Section 125 of Cr.P.C. and having regard to the nature of jurisdiction exercised by a Magistrate thereunder, so also the provisions of Section 7 (2) (a) of the Family Courts Act, 1984, held that Section 125 of Cr.P.C. has to be interpreted as conferring the power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under Section 125 of Cr.P.C. to pay reasonable sum by way of interim Page 9 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 maintenance subject to the other conditions referred to therein pending final disposal of the application.
iii). Whereas, in Dipika Sharma's case (third supra), a Division Bench of Tripura High Court dealt with the general power of transfer and withdrawal under Section 24 of CPC in respect of matrimonial proceedings with reference to Section 7 of the Family Courts Act.
15. I have carefully perused the above decisions and the principles laid in the above decisions are not in dispute. In fact, Section 24 of CPC authorizes the High Court to transfer any suit or proceeding from one civil Court to another civil Court under its jurisdiction. While a Family Court is established as per the provisions of the Family Courts Act, it shall have jurisdiction to deal with the matters contained in Section 7 of the Act exclusively since the Act has overriding effect over any other law as prescribed in Section 20 of the Act.
16. Be it stated that Family Courts Act has not as a whole excluded the application of CPC or Cr.P.C. The provisions of the procedural law prescribed in the CPC, Page 10 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 Cr.P.C. or in the Evidence Act which is not in conflict and/or inconsistent with the provisions of the Family Courts Act shall apply in respect of proceedings to which the Family Court exercises jurisdiction. Once, the Family Court is also a Court subordinate to the High Court, the High Court's power to transfer a proceeding from the Family Court to any other Court having jurisdiction cannot be said to be excluded or restricted. The High Court in exercise of power under Section 24 of CPC has the power even to transfer matrimonial proceedings from one Family Court to another Family Court or from a Family Court to a Court of competent jurisdiction.
17. Per contra, the learned counsel on behalf of wife strenuously contends that wife is an unemployed woman, she has no source of income and she is depending on her parents. It is causing lot of inconvenience and hardship for her to attend the proceedings before the Family Court at Warangal on each and every date of hearing and that as the de facto complainant in the pending criminal case she need not attend before the Court at Warangal on each and Page 11 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 every date of hearing and her role is very much limited in the criminal case only to give evidence, accordingly requested for dismissal of Tr.CMP No.213 of 2021 and to allow Tr.CMP No.75 of 2022. Also relied on the principles laid by the Apex Court in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha4.
18. In N.C.V. Aishwarya's case (fourth supra), the Apex Court dealt with the general cardinal principle for exercise of power under Section 24 of CPC and held that 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. The Apex Court while dealing with the transfer of matrimonial maters held that 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, 4 2022 Lw Suit (SC) 962 = 2022 Law Suit (SC) 862 Page 12 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 social strata of the spouses, their behavioural pattern, their standard of life prior to the marriage and subsequent to the marriage and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to live.
18. The Hon'ble Supreme Court of India in Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi5 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.
19. Therefore, when the facts of the case on hand are tested on the touchstone of the principles laid in the above decisions, the answer is in the positive and that the wife is entitled for withdrawal of FCOP No.81 of 2021 pending on the file of the learned Judge, Family Court at Warangal and for transfer of the same to the learned Judge, Family Court at Khammam to be tried along with MC No.35 of 2021 pending on the file of that Court, since she is unemployed woman, she has no independent source of income, she is 5 (2005) 12 SCC 237 Page 13 of 14 AVRJ Tr.CMP Nos.213 of 2021 and 75 of 2022 surviving under the protective umbrella of her parents who are residents of Khammam. That apart, as per Section 19
(iii)(a) of the Hindu Marriage Act 1955, wife has right to prosecute the matrimonial disputes under Hindu Marriage Act before the jurisdictional Court where she is living. Undisputedly, even as per the cause title in FCOP No.81 of 2021, wife is residing at Khammam along with her parents.
20. For all the reasons and in view of the principles laid in the above decisions, I hold that the husband is not entitled for withdrawal of MC No.35 of 2021 pending on the file of the learned Judge, Family Court at Khammam, resultantly Tr.CMP No.213 of 2021 stands dismissed. Whereas, the wife is entitled for withdrawal of FCOP No.81 of 2021 pending on the file of the learned Judge, Family Court at Warangal and for transfer of the same to the learned Judge, Family Court at Khammam to be tried along with MC No.35 of 2021 filed by her pending on the file of that Court. Resultantly, Tr.CMP No.75 of 2022 stands allowed.
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21. Accordingly, Tr.CMP No.213 of 2021 is dismissed, whereas Tr.CMP No.75 of 2022 is allowed. FCOP No.81 of 2021 pending on the file of the learned Judge, Family Court at Warangal is ordered to be withdrawn and transferred to the learned Judge, Family Court at Khammam to be tried along with MC No.35 of 2021 filed by the wife pending on the file of that Court. The learned Judge, Family Court at Warangal shall transmit the entire record in FCOP No.81 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 these Tr.CMPs shall stand closed.
__________________________________ A. VENKATESHWARA REDDY, J.
Date: 16.08.2022 Isn