Dr.Undrajavarapu Indira ... vs Uppati Jyothi Kiran
2022 Latest Caselaw 9839 AP

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      THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

TRANSFER CIVIL MISCELLANEOUS PETITION NO.181 OF 2022
                        AND
TRANSFER CIVIL MISCELLANEOUS PETITION NO.182 OF 2022


COMMON ORDER:-

      The Transfer Civil Miscellaneous Petition No.181 of 2022 is

filed by the petitioner by name Dr. Undrajavarapu Indira

Bharathi Roy, who is the respondent in F.C.O.P.No.99 of 2022,

on the file of Additional Family Court, Visakhapatnam District at

Visakhapatnam, with a prayer to transfer the said case to the

Judge, Family Court, Rajamahendravaram, East Godavari

District.

2) The Transfer Civil Miscellaneous Petition No.182 of

2022 is filed by the petitioner by name Dr. Undrajavarapu Indira

Bharathi Roy, who is the respondent in F.C.O.P.No.1693 of

2021, on the file of Additional Family Court, Visakhapatnam

District at Visakhapatnam, with a prayer to transfer the said

case to the Judge, Family Court, Rajamahendravaram, East

Godavari District.

3) Both the Transfer Civil Miscellaneous Petitions are

filed by the one and same petitioner. The respondent in both

the Transfer Civil Miscellaneous Petitions are one and same i.e.,

husband of the petitioner. The contents of the Transfer Civil

Miscellaneous Petitions are one and same and even the counter

of the respondent is also one and same. Therefore, it is just and

necessary to dispose these two applications by a common order.

4) The case of the petitioner, in brief, insofar as the

Transfer Civil Miscellaneous Petition No.181 of 2022 is

concerned, that the deponent is the petitioner, who knows the

facts of the case. The respondent is her husband. Her marriage

with respondent was performed on 11.04.2016 at Vysakhi

Function Hall, Visakhapatnam, as per Christian caste and custom

in the presence of family members and well-wishers. The

marriage was duly consummated and she joined with the

respondent at Visakhapatnam. During the wedlock, they were

blessed with a female child on 19.12.2016. They lived happily

for some time and thereafter, respondent demanded her for

additional dowry and also Rs.50,00,000/- to purchase a PG seat

and she was subjected to harassment physically and mentally.

She got a job as Civil Assistant Surgeon at Avidi PHC, East

Godavari District. The respondent is working at Government

Hospital, East Godavari District on contract basis. He made

propaganda against her that she has illicit intimacy with her

colleagues in Avidi where she is working.

5) On 25.08.2021 at 11-50 A.M., respondent and

others kidnapped her child, which is the subject matter in Crime

No.282 of 2021 under Sections 498-A, 363, 451, 506 r/w 34 of

Indian Penal Code ("I.P.C." for short) and 3 and 4 of Dowry

Prohibition Act, on the report lodged by her. The police traced

out the child from the respondent at Chilakaluripeta, Guntur

District. He attacked the police and the said incident is the

subject matter in Crime No.465 of 2021 under Section 353 r/w

34 of I.P.C. of Chilakaluripeta Police Station.

6) The petitioner has to appear in F.C.O.P.No.99 of

2022, which is filed for divorce by the respondent before the

Additional Family Court, Visakhapatnam by travelling 350

Kilometers from Rajamahendravaram to Visakhapatnam. She

has threat of life from the respondent and his family members.

She is residing at her parents' house. Though she has

accommodation in Avidi, still she is travelling from

Rajamahendravaram to Avidi. Her parents are taking care of

her minor child. She filed a maintenance case in M.C.No.14 of

2022 before the IV Additional Junior Civil Judge,

Rajamahendravaram, which is pending. Petitioner is facing

severe financial and physical problems to attend different Courts

at Visakhapatnam. Hence, the petition.

7) The respondent got filed a counter denying the

averments in the petition and resisting the allegations raised

against him and it is sufficient here to extract the substance of

the counter, which is relevant in deciding these applications.

8) What all the allegations raised against him on the

allegations of demand of dowry, etc. are all false. In fact, he

found the petitioner along with her colleague, Ravi Kumar, on

19.11.2020, in a compromising position when he and his

parents went to the house of the petitioner. Then, he questioned

the same, but, he was beaten and he was also threatened for

killing. He was informed that his minor child was under

harassment physically and psychologically with the help of

petitioner's concubine, as such, he rushed Avidi village and

picked up child. But, the police unnecessarily implicated him in

kidnap case. The filing of cases against him is against the Police

Standing Orders. Petitioner faced with several transfers on

account of certain allegations against her. The brother of the

petitioner committed offence under Section POCSO Act against

the minor child of the petitioner and respondent, but the

petitioner is trying to protect him. Though the Additional Family

Court, Visakhapatnam, directed the petitioner to hand over the

child to respondent, petitioner did not comply. Petitioner never

attended the Additional Family Court, Visakhapatnam where

F.C.O.P.No.1693 of 2021 and F.C.O.P.No.99 of 2022 are

pending. Respondent has every apprehension of the life threat

in the hands of the petitioner. Even the brother of the petitioner

gave life threat to the respondent at Government Hospital,

Rajamahendravaram. The daughter of the petitioner and

respondent i.e., minor child cannot be continued to stay along

with the petitioner along with her brother, who committed

offence under POCSO Act against the minor child. This Court

while disposing C.R.P.No.621 of 2022 directed the Judge, Family

Court to dispose the F.C.O.P.No.1693 of 2021, within a period of

8 months from the date of receipt of the copy of order. The

petitioner approached this Court and obtained stay in this

Transfer Civil Miscellaneous Petition to defeat the order in

C.R.P.No.621 of 2022. Hence, the petition is liable to be

dismissed.

9) The case of the petitioner in Transfer Civil

Miscellaneous Petition No.182 of 2022 is similar as that of the

Transfer Civil Miscellaneous Petition No.181 of 2022, but with

additional allegation that the respondent filed F.C.O.P.No.1693

of 2021, on the file of the Additional Family Court,

Visakhapatnam, under Sections 7, 8, 10, 17 and 25 of the

Guardians and Wards Act, 1890 for appointment of the

guardianship of the minor child and it is very difficult for her to

attend the Additional Family Court, Visakhapatnam physically

and she is facing problems financially as well as physically, as

such, it may be transferred to the Judge, Family Court,

Rajamahendravaram.

10) The respondent got filed a counter in Transfer Civil

Miscellaneous Petition No.181 of 2022 with the self-same

contents.

11) Now, in deciding these Transfer Civil Miscellaneous

Petitions, the point for determination is as to whether the

petitioner in Transfer Civil Miscellaneous Petition No.181 of 2022

and Transfer Civil Miscellaneous Petition No.182 of 2022 is

entitled for transfer of F.C.O.P.No.1693 of 2021 as well as

F.C.O.P.No.99 of 2022, on the file of Additional Family Court,

Visakhapatnam District at Visakhapatnam to the Judge, Family

Court, Rajamahendravaram, East Godavari District, as prayed

for?

Point:-

12) The learned counsel for the petitioner would contend

in accordance with the averments of the affidavits in both the

Transfer Civil Miscellaneous Petitions and he would relying upon

the judgment of the Hon'ble Supreme Court in

N.C.V. Aishwarya vs. A.S. Saravana Karthik Sha in Civil

Appeal No(s).4894 of 2022 (Arising out of S.L.P.(C) No(s).16465

of 2021). He would submit further that even the respondent is

working at Government Hospital, Rajamahendravaram, on

contract basis and it is not in dispute and if that be the case,

there cannot be objections from the counter of the respondent

to transfer the cases filed by him before the Additional Family

Court, Visakhapatnam to the Judge, Family Court,

Rajamahendravaram.

13) Learned counsel appearing for the respondent would

contend according to the contents of the counter and would

further submit that in view of the decision of the Hon'ble

Supreme Court in Abhilasha Gupta vs. Harimohan Gupta, it

is a case where the Hon'ble Supreme Court declined to grant the

relief of transfer of a matrimonial dispute from one Court to

another because the case was in advanced stage. He would

submit that insofar as F.C.O.P.No.1693 of 2021 is concerned,

respondent herein in the capacity of the petitioner therein

obtained an order for interim custody of the child, which was

challenged by the petitioner herein before the High Court of

Andhra Pradesh at Amaravati in Civil Revision Petition No.621 of

2022 and the petitioner herein could succeed in the Civil

Revision Petition, but the High Court of Andhra Pradesh at

Amaravati directed the learned Judge, Family Court, to dispose

of the O.P. within a period of 8 months from the date of receipt

of a copy of the order and the said order was, dated

18.04.2022. But, soon after disposal of the Civil Revision

Petition to stall the disposal of F.C.O.P.No.1693 of 2021, the

petitioner filed this Transfer Civil Miscellaneous Petitions and

obtained interim stay, as such, the order in Civil Revision

Petition could not be complied by the learned Judge, Family

Court. He would contend that it is the respondent, who has life

threat in the hands of the petitioner and her brother, as such,

the petition is liable to be dismissed.

14) As evident from the allegations and the counter

allegations coupled with the copies of F.I.Rs. filed by the parties

right from 2016 to 2022, it appears that there are acute ill-

feelings between the petitioner and respondent. It is not within

the provisions of this Court to decide the genuinity or otherwise

of the allegations mentioned in the copies of F.I.Rs. There is no

dispute about the factum of registration of a kidnapping case

and under Section 498-A of I.P.C. case and further a case under

Section 353 of I.P.C. against the respondent herein, but the

respondent herein is questioning the authority of the police in

this regard. This Court cannot decide the same. Apart from

this, there is also no dispute as evident from the copies of

F.I.Rs. that the respondent herein claimed to have lodged a

report with police alleging the offence under POCSO Act against

the brother of the petitioner and further alleging that he made

assault on the minor girl. So, the genuinity or otherwise of it

cannot be the subject matter of this Transfer Civil Miscellaneous

Petitions. There is no dispute that though the petitioner herein

is working at Avidi, East Godavari District, but she is not staying

there. But, she claimed to be with her parents at

Rajamahendravaram. Simply because the respondent is said to

be residing at Rajamahendravaram as contract basis employee,

it cannot be held that his permanent resident will be at

Rajamahendravaram. On the other hand, the respondent herein

filed F.C.O.Ps. showing his address as permanent resident of

Visakhapatnam.

15) This Court has gone through the decision of the

Hon'ble Supreme Court in N.C.V. Aishwarya's case (1 supra). It

is a case where initially the request of the wife before the High

Court of Judicature at Madras in TR.C.M.P.No.473 of 2020 to

transfer F.C.O.P.No.125 of 2020 filed by her husband before the

Family Court, Vellore to the Family Court at Chennai, was

rejected. Later, she canvassed the matter before the Hon'ble

Supreme Court. The Hon'ble Supreme Court dealing with the

issue at para Nos.9 and 10 held as follows:

9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, 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, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. 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.

10. Further, 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.

16) The learned counsel for the respondent would rely

upon the decision in Abhilasha Gupta's case (2 supra). It is also

a case where the wife in a matrimonial dispute filed an

application before the Hon'ble Supreme Court for transfer of

matrimonial dispute from the Court of the Additional District and

Sessions Judge, Susner, Madhya Pradesh to the Family Court at

Kota, Rajasthan. The Hon'ble Supreme Court dealt with a

situation that in that particular case evidence of the petitioner in

the dispute was recorded and the matter was posted for the

evidence of wife and the distance between the places was less

than 200 kilometers and took into consideration the offer made

by the husband to pay expenses to the wife and declined to

grant the relief and dismissed the same.

17) At the outset, this Court would like to make it clear

that the distance between Rajamahendravaram to

Visakhapatnam is around 200 kilometers but not 350 kilometers

as canvassed by the petitioner. Apart from this, the Hon'ble

Supreme Court in N.C.V. Aishwarya's case (1 supra) held that in

matrimonial matters where the Courts are called upon to

consider the plea of transfer, the Courts have to take into

consideration the economic soundness of both the parties, the

social strata of the spouses and their behavioural pattern, their

standard of life prior to the marriage and subsequent thereto

and the circumstances of both the parties in eking out their

livelihood, etc. and further convenience of the wife can generally

be looked into.

18) Coming to the present case on hand, petitioner

herself pleaded that she is a Civil Assistant Surgeon and the

respondent is working on contract basis. So, as per pleadings

on economic front, the petitioner is better placed than the

respondent. As regards their behavioural pattern, both of them

are indulging in raising serious allegations against each other

and even gone to the extent of filing cases against each other.

So, the relations between the petitioner and respondent are

totally strained and there is any amount of bad blood appears to

be flowing between them. Apart from this, coming to the

behavioural pattern, there is no dispute that the respondent

herein filed two F.C.O.Ps. at Additional Family Court,

Visakhapatnam.

19) The respondent pleaded in the counter about the

order in C.R.P.No.621 of 2022, but, none of the parties filed the

copy of the order. This Court has looked into the order in the

official website of the High Court of Andhra Pradesh and found

certain facts there to the effect that the respondent herein in the

F.C.O.P.No.1693 of 2021 filed an Interlocutory Application in

I.A.No.5 of 2022 to get the interim custody of the child and the

petitioner herein resisted the prayer to give the custody and the

learned Judge, Family Court, Visakhapatnam by order, dated

11.01.2022 ordered interim custody of the child to the

respondent herein, who was the petitioner in F.C.O.P.No.1693 of

2021. Aggrieved by the same, the present petitioner filed the

C.R.P.No.621 of 2022 and after conducting necessary enquiry,

this Court reversed the order of the learned Judge, Family Court,

Visakhapatnam and ordered the custody of the child to the

petitioner herein and further ordered that the father shall have

visiting rights to visit before girl weekly once and spent time

with her on Sunday between 3-00 P.M. to 6-00 P.M. Those are

all different things, but the main issue is that this Court keeping

the interest of the minor child directed the learned Judge, Family

Court, Visakhapatnam, to dispose of the main O.P. as

expeditiously as possible in any event within a period of 8

months from the date of receipt of a copy of the order and

further with an observation that both parties shall cooperate for

early disposal of the matter. The said order was made on

18.04.2022 with a direction to issue certified copy by

20.04.2022. So, both the parties herein are bound to cooperate

the learned Judge, Family Court, Visakhapatnam to comply the

order in C.R.P.No.621 of 2022 i.e., disposal within a period of 8

months from the date of receipt of a copy of the order.

20) Now these Transfer Civil Miscellaneous Petition

Nos.181 and 182 of 2022 are filed by the present petitioner on

04.05.2022 after disposal of the said C.R.P.No.621 of 2022. As

evident from the proceeding sheet, the petitioner obtained

interim stay which is being extended from time to time staying

the further proceedings in F.C.O.P.No.1693 of 2021 as well as

F.C.O.P.No.99 of 2022. In the entire contents of the affidavits,

the petitioner did not disclose the factum of time bound

directions in C.R.P.No.621 of 2022. So, the fact remains is that

on account of the stay granted by this Court in Transfer Civil

Miscellaneous Petition No.182 of 2022, which is being extended

from time to time, in F.C.O.P.No.1693 of 2021 there could not

be any progress. Though this plea is raised by the respondent

in the counter specifically, there is no rejoinder from the part of

the petitioner. So, it is not a case where the petitioner has no

knowledge about the directions in C.R.P.No.621 of 2022. So, it

appears that the petitioner filed Transfer Civil Miscellaneous

Petition No.182 of 2022 knowing fully well about the directions

in C.R.P.No.621 of 2022, as such, ultimately the progress in

F.C.O.P.No.1693 of 2021 is hampered.

21) Under the circumstances, this Court is of the

considered view that the petitioner should have been fair

enough in the fitness of things to plead about the time bound

directions that are given in C.R.P.No.621 of 2022 while

approaching this Court by filing these two Transfer Civil

Miscellaneous Petitions. Even according to the judgment of the

Hon'ble Supreme Court in N.C.V. Aishwarya's case (1 supra),

the Court can grant transfer of proceedings to avoid any

conflicting judgments. It is to be noticed that the petitioner

claimed to have filed a maintenance case at

Rajamahendravaram which has nothing to do with the issues in

F.C.O.P.No.1693 of 2021 and F.C.O.P.No.99 of 2022. So, it is

not a case where these two F.C.O.Ps. and the maintenance case,

ought to be decided by a one and same Judicial Officer. Apart

from this, the petitioner approached the jurisdictional Magistrate

in filing maintenance case as she is said to be residing outside

the urban area of Rajamahendravaram and it is not a case

where she approached the Judge, Family Court for claiming

maintenance under Section 125 of the Code of Criminal

Procedure. So, when the petitioner is residing outside the urban

limits of Rajamahendravaram city, she cannot seek to transfer

the cases to Judge, Family Court, Rajamahendravaram. If she is

residing within the city limits, she would have approached the

Family Court even in filing maintenance case on behalf of the

minor child.

22) Viewing from any angle and looking into the facts

and circumstances, this Court is of the considered view that it is

not at all desirable, in the interest of justice, to grant the relief

prayed. As the parties are fighting with each other with all

serious allegations indulging in filing cases against each other, it

is necessary in the interest of justice, not to grant the relief

prayed. Failure on the part of the petitioner to plead the factum

of C.R.P.No.621 of 2022 orders in these applications would

disentitle the petitioner to claim the relief.

23) Needless to point out here that what all the

observations that are made by this Court are only deciding these

two Transfer Civil Miscellaneous Petitions and these observations

shall not be binding in any way on the learned Judge, Family

Court, Visakhapatnam, while disposing F.C.O.P.No.1693 of 2021

and F.C.O.P.No.99 of 2022 on merits. Hence, I see no reason to

grant the relief.

24) In the result, both the Transfer Civil Miscellaneous

Petitions are dismissed. There shall be no order as to costs.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt.23.12.2022.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

COMMON ORDER IN Tr.C.M.P.NO.181 OF 2022 AND Tr.C.M.P.NO.182 OF 2022

Date: 23.12.2022

PGR