HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
TRANSFER C.M.P.No.18 of 2021
ORDER:
1. Petitioner-wife has filed this petition under Section 24 of the Code of Civil Procedure for transfer of O.P.No.23 of 2020 pending on the file of Judge, Family Court at Warangal to the file of Judge, Additional Family Court at Malkajgiri.
2. The marriage of petitioner with the respondent was performed on 12.12.2018 as per the prevailing customs in their community. They led happy marital life for some time. Later, the petitioner was subjected to mental and physical harassment in the hands of respondent and his family members. The respondent was using vulgar language against the petitioner and also beat her, a panchayat was also held, elders advised for a compromise, but in vain. Finally, she was forced to join her parents when she fell sick and there was nobody to attend her at her inlaws' place. Later, the respondent has filed O.P.No.23 of 2020 on the file of Judge, Family Court at Warangal, seeking divorce. She has filed a domestic violence case and a criminal case for the offence under Section 498-A before the Courts at Malkajgiri. Accordingly, requested for transfer of FCOP.No.23 of 2020 to Malkajgiri Court.
3. Respondent-husband has filed a detailed counter alleging that the petitioner used to go to the office in the night shifts and never resided with him in the house. She never co-operated with him at any 2 AVR, J Tr.CMP.No.18 of 2021 point of time for leading conjugal life. She used to make nuisance in the locality and at times she used to go to the office of the respondent and create gallata, and in view of the same, he lost his job and he is residing with his parents at Hanamkonda doing carpentry work. Though the panchayat was held in the presence of elders, the petitioner was reluctant to join the respondent. She has filed a criminal case for the offence under Section 498-A of IPC. The respondent has filed a petition before the High Court seeking directions to the Police not to call him in civil disputes. Consequently, the Police have registered a case for the offence under Section 498-A of IPC. The criminal case and the domestic violence case in DVC.No.93 of 2019 are all false and fabricated. If the matter is transferred from Warangal to Malkajgiri, again, a new number will be given to the case and it takes considerable time. The domestic violence case and the criminal case are not connected with divorce petition and therefore, prayed for dismissal of this petition.
4. Heard learned counsel on both sides.
5. The learned counsel for petitioner seeks to submit that in matrimonial disputes, the convenience of wife needs to e preferred and that the same principle is followed by this Court in M.Hema Madhuri v. Mopur Sandeep1 and that it causes hardship to the petitioner if the petition is not allowed and she is made to attend the Family Court at Warangal.
1 2019 SCC Online TS 3304 3 AVR, J Tr.CMP.No.18 of 2021
6. Per contra, learned counsel for respondent has strenuously contended that it is because of the attitude of the petitioner the respondent is forced to file the divorce O.P. and that the respondent has lost his job and now he is doing carpentry work supporting his parents. Filing of domestic violence case and criminal case for the offence under Section 498-A IPC at Malkajgiri is nothing to do with the divorce O.P. In fact, the presence of the petitioner may not be required on each and every date of hearing at the Family Court at Warangal and she may be permitted to attend the Court as and when required and to that extent, he is willing to pay her travelling expenses. Accordingly, the respondent has relied on the following decisions :
1. Smt.Pancherupula Sathyavathi v. Pancherupala Prabhakar2
2. Pooja Tipirneni v. Tipirneni Harsha3.
3. Motupalli Usha Rani v. Pala Sivva Rama Krishna4.
4. Asuru Jyothi v. Asuri Someswara Rao5.
5. Kunapareddy Venkateswara Rao v. Kunapareddy Nagamani Kumari6.
6. Amrula Ben Himanshu Kumar Shah v. Himanshu Kumar Pravinchandra Shah7
7. I have carefully perused the principles laid in the above decisions. The admitted and undisputed facts of the case are that the 2 Order of this Court in Transfer CMP.No.88 of 2019, dt.13.02.2020. 3 2020 (2) ALD 385 4 2020 (6) ALD 204 (AP) 5 2021 (2) ALD 33 (AP) 6 2021 (3) ALD 626 (AP) 7 2021 (2) ALD 116 (SC) 4 AVR, J Tr.CMP.No.18 of 2021 petitioner is the legally wedded wife of the respondent. They led happy marital life for some time. Thereafter, disputes arose between them. The intervention of the elders could not resolve the disputes. Petitioner-wife started living with her parents at Malkajgiri. Whereas the contention of the petitioner is that she was neglected, ill-treated not only by the respondent, but by his family members also. She was thrown out of her matrimonial house, forced to join her parents. As the respondent has failed to lookafter her and harassed her, she was compelled to file a domestic violence case and a criminal case for the offence under Section 498-A of IPC for demand for additional dowry and requested to transfer the divorce O.P. pending on the file of Judge, Family Court at Warangal to the Judge, Additional Family Court at Malkajgiri for the sake of convenience, considering her safety.
8. Learned counsel for petitioner has relied upon the judgment in the case of M.Hema Madhuri (1 supra), wherein, this Court, considering the request of the wife seeking transfer of HMOP from the file of Family Court, Ranga Reddy District to the competent Court at Suryapet, held that Section 19 of the Hindu Marriage Act, 1955 has been amended in the year 2003 by insertion of proviso (iii)(a). The amended Section 19(iii)(a) of the Act gives special preference to the wife to file a petition and prosecute the same before the Court in whose jurisdiction she resides. Law is well settled that in cases of present nature, convenience of wife is of paramount importance. 5
AVR, J Tr.CMP.No.18 of 2021
9. In Pancherupula Sathyavathi (2 supra) and in Pooja Tipirneni's case (3 supra) relied upon by the learned counsel for respondent, it was observed that unless and until a sufficient and cogent ground is shown for transfer of a case from one Court to another, transfer should not be allowed as a matter of course. In Motupalli Usha Rani's case (4 supra), ill-health of the petitioner was not considered as a ground for transfer of case. Whereas, in Asuru Jyothi's case (5 supra), transfer petition was allowed, O.P. filed by the husband was transferred from Visakhapatnam to Vizianagaram. In Kunapareddy Venkateswara Rao's case (5 supra) relied upon by the learned counsel for respondent, the husband, an RTC employee, claiming inconvenience, filed a transfer CMP and the same was dismissed. Finally, in the case of Amrutha Ben Himanshu Kumar Shah (7 supra), when the case was posted for final arguments, the Hon'ble Supreme Court has declined to order transfer, as it may derail the entire process. Thus, the judgments relied upon by the learned counsel for respondent are not at all helpful to the respondent to show that the petitioner is not entitled for transfer of the pending divorce O.P.
10. The Hon'ble Supreme Court in Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi8, while dealing with transfer proceedings of matrimonial dispute, held that in this type of matters, the convenience of the wife is to be preferred over the convenience of the 8 (2005) 12 SCC 237 6 AVR, J Tr.CMP.No.18 of 2021 husband. Therefore, having regard to the facts of the case, principles laid in the above decision, I deem it fit to consider the request of the petitioner.
11. In the result, the Transfer CMP is allowed. O.P.No.23 of 2020 pending on the file of Judge, Family Court, Warangal is withdrawn and transferred to the Judge, Additional Family Court, Malkajgiri for disposal in accordance with law. The learned Judge, Family Court, Warangal shall transmit the entire record duly indexed, within one month from the date of receipt of this order. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_______________________________ A. VENKATESHWARA REDDY, J Date: 26.11.2021 ajr