Karnataka High Court
Smt. Sumitra W/O Basappa Dalawai vs Basappa S/O Appayappa Dalawai on 16 November, 2023
Bench: K.S.Hemalekha
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NC: 2023:KHC-D:13301
CP No. 100053 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
CIVIL PETITION NO.100053 OF 2023
BETWEEN:
SMT. SUMITRA W/O. BASAPPA DALAWAI
AGE: 33 YEARS, OCC: HOUSE HOLD WORK,
R/O: KOUJALAGI, TALUK: GOKAK,
DIST: BELAGAVI,
NOW RESIDING AT C/O PARAPPA
S/O. YAMANAPPA MAHAKALI
R/O: TERDAL, TALUK: RABAKAVI-BANAHATTI
DIST. BAGALKOT-587311.
... PETITIONER
(BY MISS. SANJANA S. MUDHOL, ADVOCATE FOR
SRI. SHIVARAJ P. MUDHOL, ADVOCATE)
AND:
BASAPPA S/O. APPAYAPPA DALAWAI,
Digitally signed
by VISHAL AGE: 38 YEARS, OCC: AGRICULTURE
VISHAL NINGAPPA
PATTIHAL R/O: KOUJALAGI, TALUK: GOKAK,
NINGAPPA
PATTIHAL
Date:
2023.11.18
DIST: BELAGAVI, PIN-591218.
14:49:26
+0530
...RESPONDENT
(BY SRI. ZANZA JOSHI, ADVOCATE FOR
SRI. GOURISHANKAR MOT, ADVOCATE)
THIS CIVIL PETITION IS FILED U/SEC.24 OF CPC, PRAYING TO
PASS AN TO TRANSFER THE PROCEEDINGS IN MC NO. 87/2022
PENDING ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, GOKAK
TO CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT
BANAHATTI, IN THE INTEREST OF MEETING THE JUSTICE.
THIS CIVIL PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CP No. 100053 of 2023
ORDER
The present petition by the wife seeking to withdraw
M.C. No.87/2022 pending on the file of the Principal Senior
Civil Judge, Gokak and transfer the same to the Civil
Judge and JMFC, Banahatti.
2. Heard the learned counsel Miss Sanjana
S.Mudhol appearing for the petitioner and the learned
counsel Sri. Zanza Joshi appearing on behalf of Sri. Gouri
Shankar Mot for the respondent.
3. The undisputed fact is that the petitioner is the
legally wedded wife of the respondent and their marriage
was solemnized on 29.04.2007 at Mannikeri
Mahanteshwar Temple of Gokak Taluk, Belagavi District
and from the wedlock they were blessed with three
children. Due to un-cordial relationship between the
petitioner and the respondent they are living separately. It
appears that the wife filed petition under Section 125
Cr.P.C seeking maintenance in Crl. Misc. No.131/2019
before the Civil Judge and JMFC, Banahatti. The husband
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CP No. 100053 of 2023
had earlier filed M.C. No.92/2018 before the Senior Civil
Judge, Gokak seeking for restitution of conjugal rights
under Section 9 of Hindu Marriage Act, which came to be
allowed by the concerned Court. The husband has now
filed petition in M.C. No.87/2022 before the Senior Civil
Judge, Gokak seeking for divorce under Section 13(i) of
Hindu Marriage Act, 1955.
4. Learned counsel appearing for the petitioner
contends that initiation of the proceedings by the husband
before the Senior Civil Judge, Gokak in M.C. No.87/2022
for divorce has caused inconvenience to the wife to attend
the proceedings, since the distance between Banahatti and
Gokak is around 60 kilometers, there is no direct buses to
Gokak from Terdal, the petitioner has to change 2 - 3
buses to reach Gokak and more so, it is contended that at
the earlier instance in M.C. No.87/2022, the petitioner was
placed exparte for her non-appearance, this is one of the
instances, which clearly evidence that the wife has
inconvenience to attend the proceedings at Gokak. It is
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CP No. 100053 of 2023
further contended that in a matrimonial matters,
convenience of the wife takes a paramount concern, while
transferring the petition from one place to another and
place reliance on the judgment in the case of N.C.V.
Aishwarya vs. A.S.Saravana Karthik Sha1. Further, the
children are in the care and custody of the petitioner.
5. Per contra, learned counsel appearing for the
respondent would submit that the distance is only 60 Kms.
and the petitioner - wife can very well attend the
proceedings initiated by her husband before the Senior
Civil Judge at Gokak. He further submits that in the earlier
petition filed by the husband seeking restitution of
conjugal rights at Gokak, the wife had contested the
matter, and now the wife cannot contend that there is
inconvenience to attend the proceedings at Gokak and
sought to dismiss the petition.
6. Section 24 of CPC enumerates this Court to
exercise the power to transfer the petition, suit, appeal or
2022 SCC OnLine SC 119
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CP No. 100053 of 2023
other proceedings where justice demands. In transfer
petition, where the transfer is sought by the wife, the
convenience of wife needs to be considered as held by the
Apex Court in catena of judgments in line. The Apex Court
in the case of Sumita Singh Vs. Kumar Sanjay and
another2 has held that convenience of the wife must be
looked into.
7. The Apex Court in the recent decision, in the
case of N.C.V. Aishwarya vs. A.S.Saravana Karthik
Sha3 has held that at paragraph No.9, which reads as
under:
"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."
AIR 2002 SC 396
2022 SCC OnLine SC 119
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CP No. 100053 of 2023
8. In the instant case, the petitioner - wife is an
young lady aged about 33 years, residing at Banahatti, the
travel distance from Terdal Taluk, Banahatti to Gokak is
around 60 Kms., which she has to cover by changing 2 -3
buses from Terdal, wife has the care and custody of the
minor children, causing inconvenience to the petitioner-
wife to attend the proceedings initiated by her husband at
Gokak.
9. For the aforesaid reasons, this Court is of the
considered view that the petition filed by the wife needs to
be allowed. Accordingly, this Court pass the following:
ORDER
(i) The civil petition is allowed.
(ii) M.C. No.87/2022 pending on the file of
the Principal Senior Civil Judge, Gokak is
withdrawn and the same is transferred to
the Civil Judge and JMFC, Banahatti.
Sd/-
JUDGE
PJ & VNP / CT: UMD
