THE HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU TRANSFER CIVIL MISCELLANEOUS PETITION NO.23 OF 2023 ORDER :
This Transfer Civil Miscellaneous Petition has been filed by the petitioner/wife against the respondent/husband under Section 24 of the Code of Civil Procedure, 1908 with a prayer to transfer H.M.O.P.No.1 of 2021 from the file of the Senior Civil Judge, Siddipet, to the file of the III Additional District Judge-cum-Principal Family Judge, Kukatpally.
2. In support of the petition, the petitioner has filed her affidavit with the following averments:
The petitioner and the respondent are wife and husband and their marriage was performed on 23.05.2013 at Andey Village, Siddipet District. The petitioner and the respondent have led marital life happily for one year and thereafter, there were disputes between the couple. The parents of the petitioner hails from Andey Village but to eke out their livelihood, they migrated to Sanathnagar, Hyderabad, about 25 years ago and residing in 2 Sanathnagar locality. It seems that there is relationship between the petitioner and the respondent even prior to the marriage because the respondent is none other than the son of her paternal aunt. Soon after the marriage, the petitioner and the respondent lived at Siddipet. The petitioner states that the respondent subjected her to harassment for want of additional dowry, even though he had been to Mumbai to look after his business, he kept the petitioner at the native place. When the petitioner forced him to take her to Mumbai, though he took her to Mumbai, he tried to kill her and drove her from his house. Therefore, she came back to the house of her parents and at the instance of the petitioner, panchayats were conducted in the presence of the elders. The petitioner has further contended that the respondent was addicted to drinking, smoking and other bad habits, which caused mental agony to the petitioner herein. Out of the wedlock, the petitioner gave birth to a girl child on 31.12.2018. The petitioner has alleged that on the 21st day ceremony, the respondent and his parents demanded huge amount and gold ornaments and as the parents of the petitioner were unable to arrange 3 the same, the respondent beat and insulted the petitioner before the relatives and drove her away from his house. It seems that the respondent has filed petition before the Senior Civil Judge, Siddipet vide H.M.O.P.No.1 of 2021 and sought for divorce from the petitioner herein. The petitioner claims that she is a resident of Kukatpally and she has no means to travel from Hyderabad to Siddipet to attend the Court below in the above referred case. Therefore, she sought for transfer of H.M.O.P.No.1 of 2021 from Siddipet to Kukatpally.
3. Notice was ordered against the respondent but it was returned unserved with an endorsement 'unclaimed'. When learned counsel for the petitioner tried to serve the notice on learned counsel appearing before the Court below on behalf of the respondent, he 'refused' to receive the same.
4. Heard learned counsel for the petitioner.
5. Now, the point that would emerge for determination is:
Whether there are any grounds to consider the request of the petitioner for transfer of the divorce petition filed by her husband ?4
6. Notice ordered against the respondent was sent to the address which he mentioned in the divorce petition but the notice was returned unserved with an endorsement 'unclaimed'. In view of the representation made by learned counsel for the petitioner, an attempt was made to serve a copy of the petition and notice of this petition on the counsel for the respondent before the Court below. As per the endorsement made on the postal cover through which the notice was sent to the respondent, the same was kept with the postal department and having waited for seven days, the postal authorities returned the same as 'unclaimed'. Therefore, it appears that though the respondent got knowledge about this petition, avoided the service.
7. The petitioner who is aged about 28 years with a small girl child has no separate source of income. At present, she is depending upon her parents for her survival and for the survival of her daughter. In such a case, she has to attend the Court at Siddipet, which is additional burden to the petitioner as well as to her parents. 5
8. In Judgment N.C.V.AISHWARYA v.
A.S.SARAVANA KARTHIK SHA1, the Hon'ble Apex Court was pleased to observe the following:
"......... Given the prevailing socio- economic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer."
9. By relying the Judgment referred supra, and having regard to the facts and circumstances of this case and arguments put forth by the learned counsel appearing for the petitioner, this Court is of the considered opinion that in matrimonial disputes, the interest of wife shall be considered rather than the interest of the respondent. The petitioner being a mother of a small child without having any separate source of income cannot afford the travelling expenses. Therefore, the request of the petitioner can be considered.
1 2022 SCC ONLINE SC 1199 6
10. Under the discussion made hereinbefore, the petition is allowed. As a consequence thereof, H.M.O.P.No.1 of 2021 on the file of the Senior Civil Judge, Siddipet, is withdrawn and transferred to the file of the III Additional District Judge-cum-Principal Family Judge, Kukatpally.
The concerned Court is hereby directed to transmit the entire case file, after duly indexed, within two weeks from the date of receipt of a copy of this Order, under the intimation to the other side.
Pending miscellaneous applications, if any, shall stand closed. No costs.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU DATED 24.03.2023 YNK 7 THE HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU TRANSFER CIVIL MISCELLANEOUS PETITION NO.23 OF 2023 DATED 24.03.2023 YNK