Karnataka High Court
Nanditha V vs Dhananjaya B V @ Dhananjayaraj on 2 November, 2018
Equivalent citations: AIRONLINE 2018 KAR 971
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
C.P.No.349/2016
BETWEEN :
NANDITHA.V.,
W/O DHANANJAYA.B.V.,
D/O VENKATESHA.R.,
AGED ABOUT 27 YEARS
R/AT 2ND CROSS
MALLIKARJUNANAGAR
NEAR CHAMUNDESHWARI TEMPLE
HONNALI ROAD
SHIVAMOGGA CITY-577201. ...PETITIONER
(BY SRI RAJENDRA.S., ADV. FOR
SRI S.V.PRAKASH, ADV.)
AND :
DHANANJAYA.B.V.,
@ DHANANJAYARAJ
S/O VENKATESHA GOWDA
AGED ABOUT 35 YEARS
AGRICULTURIST
R/AT CHIKKASANDI
NELLIHANKALU VILLAGE
CHENNAGIRI TALUK-577217
DAVANAGERE DISTRICT. ...RESPONDENT
[RESPONDENT SERVED AND UNREPRESENTED]
THIS PETITION IS FILED UNDER SECTION 24 OF CPC
PRAYING TO [a] PASS AN ORDER WITHDRAWING THE PETITION
FILED BY THE RESPONDENT UNDER SECTION 13[a] OF HINDU
MARRIAGE ACT IN MC No.26/2016 PENDING ON THE FILE OF
THE LEARNED SENIOR CIVIL JUDGE AND JMFC, CHENNAGIRI
-2-
TITLED AS 'B.V.DHANANJAYARAJ -VS- SMT NANDITHA" TO THIS
HON'BLE COURT AND THE SAME MAY BE TRANSFERRED TO
THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT,
SHIVAMOGGA FOR DISPOSAL IN ACCORDANCE WITH LAW BY
ALLOWING THIS PETITION; AND ETC.,
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
ORDER
Though the respondent has been duly served, there is no representation.
2. Heard the learned counsel appearing for the petitioner.
3. The petitioner has sought for an order to withdraw the petition filed by the respondent under Section 13[A] of the Hindu Marriage Act, 1955 ['Act' for short] in M.C.No.26/2016 pending on the file of the learned Senior Civil Judge & JMFC, Channagiri and to transfer the same to the file of the Principal Judge, Family Court, Shivamoga for disposal in accordance with law by allowing the present petition filed under Section 24 of the Code of Civil Procedure, 1908. -3-
4. The petitioner is claiming to be the wife of the respondent. The respondent has filed M.C.No.26/2016 under Section 13[A] of the Act, seeking for dissolution of the marriage solemnized between the parties on 12.12.2008. It is the case of the petitioner that the Criminal Miscellaneous Petition No.315/2016 was filed by her and Kum. Kiranmayi, daughter of the parties herein under Sections 18, 19, 20, 22, 23 of Prevention of Women from Domestic Violence Act, 2005 before the JMFC-II Court at Shivamogga. It is contended that the petitioner is a physically challenged person now residing at Shivamogga with her parents and is taking care of her 8 years old daughter with the support of her parents.
5. Learned counsel Sri. Rajendra.S, appearing for the counsel representing the petitioner submitted that the petition in M.C.No.26/2016 now filed by the respondent before the learned Civil Judge, [Sr.Dvn] at -4- Chennagiri, seeking for the dissolution of marriage is only in retaliation to the proceedings initiated by her in Cr.Mis.No.315/2016. Further, the petitioner being a physically challenged person and non-earning member who is dependent on her parents, finds it hard to appear before the Hon'ble Court at Chennagiri in the pending proceedings filed by the respondent-husband. Considering these aspects, the transfer of the case in M.C.No.26/2016 from the learned Civil Judge [Sr.Dvn], Chennagiri to the learned JMFC-II Court at Shivamogga where the Cr.Mis.No.315/2016 is pending would be reasonable in the facts and circumstances of the case.
6. I have carefully considered the arguments advanced by the learned counsel for the petitioner and perused the material on record.
7. The petitioner is seeking for withdrawal of the case filed by the respondent-husband in M.C.No.26/2016 on the file of the learned Civil Judge -5- [Sr.Dvn] Chennagiri to the learned JMFC Court at Shivamogga on the following grounds namely, [1] Poor health condition, being a physically challenged person; [2] financial dependency on the parents; [3] Cr.Mis.No.315/2016 filed by her and her daughter pending before the learned JMFC Court at Shivamogga; and [4] taking care of her daughter, aged about 8 years.
8. This Court is conscious of the well settled legal position of law now declared by the Hon'ble Apex Court in catena of judgments whereby it is held that ordinarily, the grounds narrated in Clauses 2 to 4 as aforesaid, may alone not be a good ground for the wife to seek transfer of the case filed by the husband to a place where she resides. However, the primary ground of health condition namely, 45% disability to the left lower limb of the petitioner as evinced from the certificate issued by the Medical Officer, Primary Health Center, Thavarekere, would be a good ground to -6- consider the prayer of the petitioner coupled with the other grounds urged, to transfer the pending case in M.C.No.26/2016 filed by the respondent-husband before the learned Civil Judge [Sr.Dvn] Chennagiri to the file of the learned Principal Judge, Family Court at Shivamogga. In the absence of any efforts made by the respondent-husband to rebut the contents of Annexure-G issued by the competent authority, which depicts 45% disability of the petitioner to the left lower limb, the same requires to be considered. It is obvious that the petitioner may find it inconvenient to travel from Shivamogga to Chennagiri on every date of hearing owing to her physical disability. On the other hand, no serious hardship would be caused to the respondent- husband to appear before the learned JMFC Court at Shivamogga.
9. Considering the convenience of the parties as discussed aforesaid, the petition is allowed. -7- M.C.No.26/2016 filed by the respondent-husband before the Court of Senior Civil Judge, Chennagiri is withdrawn and transferred to the file of the Principal Judge, Family Court at Shivamogga for disposal in accordance with law.
The Principal Judge, Family Court, Shivamogga shall issue notice afresh to both the parties and proceed with the matter in accordance with law.
Sd/-
JUDGE NC.