THE HON'BLE SRI JUSTICE M.GANGA RAO
Tr.C.M.P.No.49 of 2020
ORDER:
This application, under Section 24 of the Code of Civil Procedure, 1908,
is filed by the petitioner-wife requesting to withdraw HMOP.No.155 of 2019
from the file of the Principal Senior Civil Judge's Court, Srikakulam, and
transfer the same to the file of learned Judge, Family Court, Vijayawada, for
trial and disposal in accordance with the procedure established by law.
Notice sent to the respondent has been returned unserved with an
endorsement 'addressee refused'. Hence, it is deemed service.
Heard learned counsel for the petitioner.
The case of the petitioner/wife is that her marriage with the respondent
was performed on 11.05.2017 as per Hindu customs, rites and rituals.
Thereafter, due to disputes, there was estrangement between the petitioner
and the respondent. The petitioner filed FCOP.No.1459 of 2019, under Section
13(1)(ia)(ib) of Hindu Marriage Act, 1955, on the file of the learned Judge,
Family Court at Vijayawada, seeking divorce. After receipt of summons, the
respondent filed HMOP.No.155 of 2019 under Section 9 of the Hindu Marriage
Act, on the file of Principal Senior Civil Judge's Court, Srikakulam, seeking
restitution of conjugal rights. As she is facing difficulty to attend the said Court
at Srikakulam from Vijayawada, the present transfer petition came to be filed.
Learned counsel for the petitioner submits that Srikakulam is about 460
KMs away from Vijayawada. Since estrangement, the petitioner is staying with
her parents at Vijayawada and depending on them. To attend the case filed by
the respondent at Srikakulam, petitioner has to undertake journey of 460 KMs.
There is no male assistance to the petitioner to accompany her to Srikakulam
on every date of adjournment. It would be very difficult for the petitioner to 2
travel such a long distance without any male assistance. Petitioner also has no
independent source of income to meet the travelling expenses. She is
depending on her parents. Further, it is also appropriate to get transfer the
HMOP filed by the husband before the Senior Civil Judge Court to the Family
Court, Vijayawada, to avoid conflicting judgments.
In the facts and circumstances of the case, submissions of the learned
counsel and on perusal of the material record, this Court found that it is
inconvenient and cumbersome to the petitioner - wife to attend the Court at
Srikakulam, that too, without any male support/assistance. The Hon'ble Apex
Court in Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi [(2005) 12 SCC
237], and in Sumita Singh v. Kumar Sanjay and another [(2001) 10 SCC 41]
held that wife's convenience should be looked into in matrimonial cases,
thereby she shall be given fair opportunity to defend the case. The
inconvenience of the wife in attending the Court weighs with this Court to
grant relief to the petitioner. The husband is already appearing before the
Family Court at Vijayawada in FCOP.No.1459 of 2019. Therefore, no prejudice
would be caused to the respondent, if the OP filed by him at Srikakulam is also
transferred to Family Court, Vijayawada. Further, bringing the cases filed by
both the parties to the file of one and the same Court helps in avoiding
conflicting decisions and in saving the time and money of both the parties.
Therefore, it is just and fair to grant the relief as such a course sub-serves the
ends of Justice.
In the result, the Transfer Civil Miscellaneous Petition is allowed and the
HMOP.No.155 of 2019 on the file of the Principal Senior Civil Judge's Court,
Srikakulam, is withdrawn from the file of the said Court and is transferred to
the file of the learned Judge, Family Court, Vijayawada, for trial and disposal
in accordance with the procedure established by law. Accordingly, the 3
transferor Court is directed to forthwith transmit the record in HMOP.No.155 of
2019 to the transferee Court. There shall be no order as to costs.
Miscellaneous petitions pending if any in this TRCMP shall stand closed.
___________________ JUSTICE M. GANGA RAO 01.02.2022 Vjl 4
THE HON'BLE SRI JUSTICE M.GANGA RAO
Tr.C.M.P.No.49 of 2020
01.02.2022
Vjl
