Karnataka High Court

Smt Kavya S vs Sri K G Pavankumar on 14 February, 2024

                                          -1-
                                                   NC: 2024:KHC:6388
                                                    CP No. 4 of 2024
                                                C/W CP No. 2 of 2024



               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 14TH DAY OF FEBRUARY, 2024

                                     BEFORE
                    THE HON'BLE MR JUSTICE C.M. POONACHA
                         CIVIL PETITION NO. 4 OF 2024
                                          C/W
                         CIVIL PETITION NO. 2 OF 2024


             IN CIVIL PETITION NO.4/2024

             BETWEEN:

             SMT KAVYA S
             W/O SRI K G PAVAN KUMAR,
             AGED ABOUT 34 YEARS,
             R/AT NO. 24,
             BEHIND CHAITHRA PUBLIC SCHOOL,
             SURYA LAYOUT,
             SRIRAMPURA 2ND STAGE,
             MYSURU - 570 023.
                                                        ...PETITIONER
             (BY SRI. THEJESH N., ADVOCATE)
Digitally
signed by
BHARATHI S   AND:
Location:
HIGH
COURT OF     SRI K G PAVANKUMAR
KARNATAKA
             S/O K P GOPAL,
             AGED ABOUT 43 YEARS,
             R/AT KUVEMPUNAGARA,
             (J P M LAYOUT)
             CHANNAPATTANA ROAD,
             HALAGURU VILLAGE,
             HALAGURU HOBLI, MALAVALLI TALUK,
             MANDYA DISTRICT - 571430.
                                                      ...RESPONDENT
             (BY SRI. L RAJA, ADVOCATE)
                              -2-
                                        NC: 2024:KHC:6388
                                         CP No. 4 of 2024
                                     C/W CP No. 2 of 2024



     THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF
THE CPC, PRAYING 1. ALLOW THE PETITION AND THEREBY
ORDER FOR TRANSFER OF M.C. NO. 85/2023 WHICH IS
PENDING IN THE SENIOR CIVIL JUDGE AND JMFC AT
MALAVALLI, MANDYA WHICH IS AS PER ANNEXURE-B TO THE
PRINCIPAL FAMILY COURT AT MYSURU. 2 ANY OTHER
CONSEQUENTIAL RELIEFS THAT MAY BE GRANTED IN THE
FACTS AND CIRCUMSTANCES OF THE CASE.

IN CIVIL PETITION NO.2/2024

BETWEEN:

SMT KAVYA S
W/O SRI K G PAVAN KUMAR
AGED ABOUT 34 YEARS
R/A NO.24
BEHIND CHAITHRA PUBLIC SCHOOL
SURYA LAYOUT
SRIRAMPURA 2ND STAGE
MYSURU-570023.
                                            ...PETITIONER
(BY SRI. THEJESH N., ADVOCATE)

AND:

SRI K G PAVANKUMAR
S/O K P GOPAL
AGED ABOUT 43 YEARS
R/A KUVEMPUNAGARA
(J P M LAYOUT), CHANNAPATTANA ROAD
HALAGURU VILLAGE
HALAGURU HOBLI, MALAVALLI TALUK
MANDYA DISTRICT-571430
                                           ...RESPONDENT
(BY SRI. L RAJA, ADVOCATE)

     THIS CIVIL PETITION IS FILED UNDER SEC.24 OF CPC,
PRAYING TO (I) ALLOW THE PETITION AND THEREBY ORDER
FOR TRANSFER OF MIS.NO.10/2023 WHICH IS PENDING IN
THE SENIOR CIVIL JUDGE AND JMFC AT MALAVALLI, MANDYA
WHICH IS AS PER ANNEXURE-C TO THE PRINCIPAL FAMILY
                                 -3-
                                                NC: 2024:KHC:6388
                                               CP No. 4 of 2024
                                           C/W CP No. 2 of 2024



COURT AT MYSURU. (II) ANY OTHER CONSEQUENTIAL RELIEFS
THAT MAY BE GRANTED IN THE FACTS AND CIRCUMSTANCES
OF THE CASE.

     THESE PETITIONS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

CP No.2/2024 is filed seeking for transfer of

Misc.No.10/2023 pending on the file of the Senior Civil Judge

and JMFC, Malavalli, Mandya to the Principal Judge, Family

Court at Mysuru. CP.No.4/2024 is filed seeking for transfer of

MC.No.85/2023 pending on the file of Senior Civil Judge and

JMFC, Malavalli, Mandya to the Principal Judge, Family Court,

Mysuru.

2. Since the parties in both the petitions are same,

they are taken up together for consideration.

3. For the sake of convenience, the parties herein are

referred to as per their relationship.

4. The relevant facts necessary for consideration of

the present petitions are that the marriage between the parties

was solemnized on 23.02.2015 and from the wedlock a

NC: 2024:KHC:6388

daughter was born to the parties. However, due to various

reasons the parties have been residing separately.

4. The husband has filed MC No.34/2022 under

Section 9 of the Hindu Marriage Act, 1955, for restitution of

conjugal rights on the file of the Senior Civil Judge and JMFC,

Malavali, Mandya, which was allowed vide judgment dated

20.06.2023. It is the contention of the wife that she was placed

ex-parte in the said proceedings. Hence, the wife filed

Misc.No.10/2023 before the said Court to set aside the ex-parte

judgment and decree dated 20.06.2023 passed in

MC.No.34/2022. The wife has also filed Clr.Misc.No.837/2023

under Section 125 of the Code of Criminal Procedure, 1973,

seeking for maintenance which is pending before the Principal

Judge, Family Court, Mysuru. Seeking transfer of

MC.No.85/2023 and Misc.No.10/2023 which are pending before

the Senior Civil Judge and JMFC, Malavalli, the wife has filed

the present petitions.

5. Learned counsel for the petitioner submits that the

wife is staying along with her parents at the address mentioned

in the cause title and the daughter of the parties is under the

NC: 2024:KHC:6388

care and custody of the wife. That wife has no independent

source of income and she is depending on her parents for

livelihood of herself and the daughter of the parties. That there

is no person to accompany the wife if she is required to travel

to Malavalli for the purpose of prosecuting the proceedings

initiated by the husband. That the distance between Mysuru

and Malavalli is 55 kms. Hence, he seeks for allowing of the

present petitions and granting of the relief sought for.

6. Per contra learned counsel for the husband submits

that the relief sought for in CP No.2/2024 cannot be granted

since Misc.No.10/2023 cannot be transferred. However he

submits that no ground has been made out by the wife seeking

for transfer since the distance between Mysuru and Malavalli is

only 55 kms and there are regular transport facilities.

7. The submissions of both the learned counsels have

been considered and the material on record has been perused.

The question that arises for consideration is, whether the relief

sought for in the present petition is liable to be granted?

8. The relationship between the parties and the

pendency of legal proceedings as also the fact that the

NC: 2024:KHC:6388

daughter is also under the care and custody of the wife are

undisputed.

9. Having regard to the fact that the wife has no

independent source of income and she is depending on her

parents for herself and the daughter of the parties and having

regard to the contention of the wife that there is no male

member to accompany her if she is required to travel to

Malavalli for the purpose of prosecuting the proceedings

initiated by the husband it is clear that the wife will be put to

great hardship if the proceedings initiated by the husband are

not transferred as sought for.

10. On the other hand, it is forthcoming from the

material on record that the husband is carrying out agricultural

operations and having his own shop. Hence, the husband has

an independent source of income. Further, the husband in any

event will be required to travel to Mysuru for the purpose of

contesting the proceedings initiated by the wife. Having regard

to the same and having regard to the settled proposition of law

as held by the Hon'ble Supreme Court in the case of N.C.V.

NC: 2024:KHC:6388

AISHWARYA VS A.S.SARAVANA KARTHIK SHA1 that while

considering cases for transfer of matrimonial proceedings, the

convenience of wife will have to be given precedence to, it is

just and proper that the relief sought in the present petition be

granted. Accordingly, the question framed for consideration is

answered in the affirmative.

11. However, there is some merit in the contention of

the learned counsel for the respondent that Misc.No.10/2023

cannot be transferred. The said case having been filed under

Order 9 of Code of Civil Procedure, 1908 to set aside the

exparte decree passed in M.C. No.34/2022, the same Court

which passed the judgment dated 20.06.2023 in M.C.

No.34/2022 is required to adjudicate Misc. No.10/2023. It is

further necessary to note that in the event, Misc.No.10/2023 is

allowed, it is expedient that MC.No.34/2022 and M.C.

No.85/2023 are tried together.

12. In view of the aforementioned, the following order

is passed:

AIR ONLINE 2022 SC 1268

NC: 2024:KHC:6388

ORDER

i. C.P. No.4/2024 is allowed.

ii. M.C. No.85/2023 pending on the file of Senior

Civil Judge, Malavalli, Mandya District shall

stand transferred to the Court of Principal

Judge, Family Court, Mysuru. However,

further proceedings in the transferred case

shall not be proceeded with till disposal of

Misc. No.10/2023 pending on the file of the

Senior Civil Judge, Malavalli, Manya.

iii. Both parties shall appear before the Principal

Judge, Family Court, Mysuru on 25.03.2024

without requirement of further notice being

issued in this regard.

iv. C.P. No.2/2024 is disposed of with the

following directions:

(a) Misc No.10/2023 shall be disposed of as

expeditiously as possible, in any event, not

later than three months from its next date of

hearing i.e., 23.2.2024;

(b) Both the parties shall appear before the

Senior Civil Judge, JMFC., Malavalli, Mandya

NC: 2024:KHC:6388

District in Misc No.10/2023 on its next date of

hearing i.e., 23.2.2024;

             (c)   In    the   event,      Misc.    No.10/2023    is

             allowed     and   the     ex-parte     judgment     and

decree dated 20.06.2023 is set aside and M.C.

No.34/2022 is restored to file, the same shall

stand transferred to the Court of Principal

Judge, Family Court, Mysuru.