Andhra Pradesh High Court - Amravati

Gangavarapu Gurindapalli Nissi, vs Gangavarapu Ravindra Babu, on 28 July, 2022

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                                                                              KVL, J
                                                                TrCMP No.87 of 2021


              HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

                         Transfer CMPNo.87 of 2021

ORDER:

This transfer petition is filed seeking to transfer DOP No.1 of 2021 on

the file of the VI Additional District Judge‟s Court, Markapur to the Court of

the Judge, Family Court, Guntur.

Case of the petitioner is that, the respondent is her husband and

their marriage was performed on14.10.2010 at Baptist church, Mission

Compound, Podili Town as per the Christian rites and they were blessed

with a female child on 30.06.2014; the respondent started harassing the

petitioner and necked out the petitioner from matrimonial home and the

petitioner is staying with her old aged parents at Guntur; she filed MC

No.192 of 2021 on the file of the Family Court, Guntur seeking maintenance

against the respondent; while so, the respondent filed DOP No.1 of 2021

under Section 10(1)(IX) (X) of Indian Divorce Act, 1869 seeking divorce; it is

highly difficult to travel all the way from Guntur to Markapur for each and

every adjournment with the child and there is imminent danger to her life

and hence, she filed the present petition seeking transfer of DOP from

Markapur to the Court of the Family Court, Guntur.

Even though notice was sent to the respondent and the counsel for

the respondent in DOP No.1 of 2021, notice sent to the respondent was

returned with an endorsement that the addressee left the place and the

notice sent to the counsel for the respondent was served on the counsel on

30.07.2021. Thereafter, counsel for the petitioner took out notice by way of

substituted service, by way of publication in Eenadu news paper on

09.01.2022 in Prakasam District. In spite of the same, none appeared for

the respondent.

KVL, J TrCMP No.87 of 2021

When the transfer CMP came up for admission on 05.05.2021, this

court granted interim stay of all further proceedings in DOP No.1 of 2021

on the file of the VI Additional District Judge, Markapur.

Heard Sri PenumakaVenkata Rao, learned counsel for the petitioner

and perused the record.

The number of divorce and related matters are increasing day by day

for various reasons and in such matters both the spouses may face genuine

difficulties. The spouse against whom the transfer proceeding is instituted

would face hardship and inconvenience by being required to commute to a

distant court, while the spouse who has instituted the original proceeding

may genuinely suffer grave inconvenience if the proceeding is transferred to

a distant court within whose jurisdiction the other spouse resides. Hence,

the transfer matters have to be decided basing on the facts of each case.

In Bhuwan Mohan Singh v. Meena 1 , the Hon‟ble Supreme Court

referred to the decision in „K.A. Abdul Jaleel vs. T.A.Shahida 2 and laid

stress on securing speedy settlement of disputes relating to marriage and

family affairs. The Hon‟ble Supreme Court in the said case held as follows:

"It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to

'((2015) 6 SCC 353

'(2003) 4 SCC 166

KVL, J TrCMP No.87 of 2021

more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow."

In „ShamimaFarooqui v. Shahid Khan3, the Hon‟ble Supreme Court

held as follows:

"When the aforesaid anguish was expressed, the predicament was not expected to be removed with any kind of magic. However, the fact remains, these litigations can really corrode the human relationship not only today but will also have the impact for years to come and has the potentiality to take a toll on the society. It occurs either due to the uncontrolled design of the parties or the lethargy and apathy shown by the Judges who man the Family Courts. As far as the first aspect is concerned, it is the duty of the courts to curtail them. There need not be hurry but procrastination should not be manifest, reflecting the attitude of the court. As regards the second facet, it is the duty of the court to have the complete control over the proceeding and not permit the lis to swim the unpredictable grand river of time without knowing when shall it land on the shores or take shelter in a corner tree that stands "still" on some unknown bank of the river. It cannot allow it to sing the song of the brook. "Men may come and men may go, but I go on forever." This would be the greatest tragedy that can happen to the adjudicating system which is required to deal with most sensitive matters between the man and wife or other family members relating to matrimonial and domestic affairs. There has to be a proactive approach in this regard and the said approach should be instilled in the Family Court Judges by the Judicial Academies functioning under the High Courts. For the present, we say no more."

'(2015) 5 SCC 705

KVL, J TrCMP No.87 of 2021

In „Vandana Sharma v. Rakesh Kumar Sharma 4 , the Hon‟ble

Supreme Court taking note of the fact that the wife had two minor

daughters and appreciating the difficulty, thought it appropriate to transfer

the case.

In „Neelam Bhatia vs. Satbir Singh Bhatia5, the Hon‟ble Supreme

Court, when the wife sought transfer of a case and husband resisted the

petition stating that the case is at the stage of evidence and pleadings were

also completed, declined to transfer the case and directed the husband to

bear the to-and-fro travelling expenses of the wife and one person

accompanying her by train whenever she actually appeared before the

Court. The Hon‟ble Supreme Court also directed payment of incidental

expenses on the date of hearing in addition to the train fare.

In „Sumita Singh Vs. Kumar Sanjay6‟, when the wife sought transfer

of a case filed by the husband on the ground that she is unable to travel up

and down from Delhi to Ara, to defend the matrimonial proceedings and

that she has no one with whom she can stay in Ara because her parents are

residents of Gurgaon; even though wife is an educated woman and doing

very well and husband is unemployed Hon‟ble Supreme Court held that it is

the wife‟s convenience that must be looked at and the circumstances

indicated are sufficient to allow the transfer petition.

In „Sangeeta Alias Shreya vs. Prasant Vijay Wargiya 7 ‟, wife filed

transfer petition on the ground that she has 2½ years old child, that she has

no source of income, and that the wife is not in a position to travel alone.

The husband therein took a plea that he has no income and he is

apprehending threats to his life and liberty if he is made to go to Kota,

'(2008) 11 SCC 768

'(2004) 13 SCC 436

(2001) 10 SCC 41

2004 13 SCC 407

KVL, J TrCMP No.87 of 2021

Rajasthan, the place where wife is seeking transfer of matrimonial case. In

the said case the Hon‟ble Supreme Court held as follows:

"We are still living in a civilised society. We see no substance in the submission that there would be danger to his life if he attends the Court at Kota and if any threat is given, the respondent can always complaint to that Court and we are sure that his, if one made, will be considered on its merit. Between a husband and a wife, the convenience of the wife must prevail particularly when the wife has a 2½ years old child".

As seen from the affidavit filed by the petitioner in support of the

transfer CMP, it is stated that the respondent used to harass the petitioner

physically and mentally and finally, he drove out the petitioner and she is

staying with her old aged parents at Guntur. Admittedly, the respondent is

a native of Markapur of Prakasam District and the petitioner is residing at

Guntur and it will take four hours for her to attend the Court. Further, as

the petitioner is a lady with a child, it is difficult for her to attend the

Court at Markapur without the assistance of her parents. The Hon‟ble

Supreme Court repeatedly held that in transfer proceedings between the

husband and wife, the convenience of the wife is of paramount importance

and in the present case, in spite of publication of notice, respondent did

not chose to contest the present petition.