Smt. Akavaram Bhavani vs Sri Akavaram Man Mohan
2021 Latest Caselaw 3514 Tel

     THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                         Tr. CMP No.159 of 2019
ORDER:

1. The petitioner/wife has filed this Transfer Civil Miscellaneous

Petition under Section 24 of the Civil Procedure Code with a request to

withdraw FCOP No.712 of 2019 pending on the file of the Judge, Family

Court, City Civil Court, Hyderabad and to transfer the same to the Judge,

Family Court at Nalgonda.

2. The petitioner is the legally wedded wife of the respondent and their

marriage was solemnized on 16.02.1997 at Nalgonda, as per the Hindu rites

and customs. They lead happy marital life for some time at Hyderabad and

later she was shifted to Mumbai. As the respondent got an opportunity to

work in the United States of America, both of them along with their minor

children shifted to USA. However, in the year 2006, while staying in USA,

she has neuro problem and she has consulted the Doctor in USA. Later, she

underwent a major surgery, as she was suffering from brain aneurysm.

After surgery, they have visited India and as per the wish of the respondent

to provide better education to their children, she stayed back at Hyderabad

in India. Again, she went USA with her children, but the respondent

insisted that their children should be admitted in a school at Nalgonda only.

Accordingly, only to prosecute the education of their children and to fulfil

his wish, she again returned back to India along with her children. Later,

the respondent has filed OS No.14 of 2016 pending on the file of the I

Additional District Judge at Nalgonda in respect of certain properties on the

name of the petitioner seeking the relief of declaration that she is the

absolute owner of the said properties. He has also filed OP No.712 of 2019

at Hyderabad for dissolution of marriage with all false allegations. In view

of her health condition and as she is illiterate woman, she cannot travel all

the way from Nalgonda to Hyderabad to attend FCOP No.712 of 2019.

3. The respondent has filed a detailed counter, through his brother, who

is a general power of attorney holder, denying the averments of the affidavit

filed by the petitioner. It is alleged in the counter that the respondent

apprehends threat to his life and physical safety as is apparent from various

conversations between the respondent and his father-in-law and that there is

no justifiable ground to transfer the FCOP from Hyderabad to Nalgonda. In

support of his claim, the respondent has filed extract of the conversation

between him and his father-in-law, who is the father of the petitioner.

4. The learned counsel for the respondent strenuously contended that

no civilized person would utter such words against any individual leave it

apart against the son-in-law and that he has also threatened with dire

consequences.

5. I have carefully perused the extracts of the conversation between the

respondent and his father-in-law i.e., petitioner's father, who exchanged

words using abusive language, as mentioned in page Nos.8 to 24 filed along

with the counter. The respondent has also asserted that there is a threat to

his life and he gave a report to the Police, Cyber Crimes on 20.10.2019 and

accordingly relied on the following decisions not to consider the request of

the wife for transfer of FCOP from Hyderabad to Nalgonda.

          i)      Premlata Singh v. Rita Singh1.

          ii)     Mutyala Rajesh, Ranga Reddy District v. M. Venkata Haritha,

Visakhapatnam (in Tr. CMP No.809 of 2016 and batch of this Court on 06.12.2018)2.

In Tr. CMP Nos.809 of 2016 and batch of cases, the common order

passed by the Hon'ble Sri Justice M. Satyanarayana Murthy on 06.12.2018.

This decision is reported in 2019 (2) ALT 1.

6. Whereas the learned counsel for the petitioner has filed a reply

affidavit to the counter denying the entire averments resisting that in the

copy of the complaint said to have been sent to the Station House Officer,

Cyber Crimes Police Station, Hyderabad by e-mail on 20.10.2019, it is

clearly mentioned that the respondent stayed in India from 26.09.2019 to

17.10.2019 to attend the Family Court. But, the respondent used to call the

petitioner's father during midnight and used to harass on one pretext or the

other. Though the respondent is attending suit in OS No.14 of 2016 pending

on the file of the I Additional District Judge, Nalgonda, he never had any

such experience of threat perception.

7. The learned counsel for the petitioner submits that the threat

perception is only invented for the purpose of this case, though there may

be exchange of words between the respondent and petitioner's father, who

is a goldsmith and senior citizen, that does not mean that he will go to the

extent of causing physical harm to the respondent and no such complaint

was filed at any point of time before the police, though the suit OS No.14 of

2016 is pending on the file of the I Additional District Judge's Court at

(2005) 12 SCC 277

2019 (2) ALT 1

Hyderabad and he has relied upon the decision of the Hon'ble Supreme

Court of India in Sangeetha Allas Shreya v. Prasant Vijay Wargiya3 wherein it

is held at paragraph No.4 as follows:

"we are living in a civilised society. We see no substance in the submission that there would be danger to his life if the respondent has to attend the court. If any threat is given, the respondent can always complain to the court and we are sure that his complaint, 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 2 ½ year-old child."

8. In Premlata Singh's case (1 supra) relied upon by the learned

counsel for the respondent, the Hon'ble Supreme Court in a transfer

petition from Patna to Delhi, considering the fact that petitioner No.1

Premalata Singh is under treatment for kidney failure and the petitioners

apprehend danger to their lives at Patna, it was directed that if a request is

made on their behalf for being examined at Delhi through a Court

Commissioner, such a request shall be granted. The petitioners shall bear

the expenses of the Court Commissioner.

9. In the second decision relied upon by the learned counsel for the

respondent, certain guidelines were issued by single Judge of this Court at

that time after elaborate discussion of effect of Section 24 C.P.C., various

precedents, different provisions of Family Courts Act, including

Constitutional Provisions as to access to justice etc. The learned Judge

extensively dealt with Section 24 of the Civil Procedure Code particularly

at para100 of the judgment it is again held that a Family Court is a Court

subordinate to the High Court and that the power of High Court to transfer

(2004) 13 SCC 407

the proceeding from a Family Court to any other District Court or from the

District Court to Family Court cannot be said to have been excluded or

restricted.

10. However, this Court in V. Sailaja v. V. Koteswara Rao 4 held at paras

13 to 16 that the High Court under Section 24 of the Civil Procedure Code

has got unquestionable power to transfer the cases from one court to other

court. Similarly, as the Family Court is also a Court subordinate to the

High Court and is subject to the provisions of Code of Civil Procedure, the

High Court is empowered under Section 24 of CPC to transfer cases from

one family to another family Court. A reference was also made to the

observations in P. Jayalaxmi v. K. Ravichandran5. Thus, viewed from any

angle, the principles laid down in the second decision relied upon by the

learned counsel for the respondent are not helpful to the respondent in any

away to show that wife is not entitled for transfer of pending HMOP or that

wife's convenience and safety should not be given preference over that of

husband.

11. The Hon'ble Supreme Court of India in Rajani Kishor Pardeshi Vs.

Kishor Babulal Pardeshi6 while dealing with the transfer of matrimonial

dispute held that in this type of matters, the convenience of the wife is to be

preferred over the convenience of the husband.

12. Though it is alleged by the respondent/husband that he has threat to

his life and that the petitioner's father, who is a goldsmith, has political

2003 (1) ALD 673

AIR 1992 AP 190

(2005) 12 SCC 237

clout and is threatening with dire consequences, I am not impressed with

the argument for the simple reason that the respondent's brother as a power

of attorney holder is prosecuting the litigation on behalf of the respondent.

The respondent has also personally attended the Court of the I Additional

District Judge in OS No.14 of 2016 where he has filed a declaration of suit

against the petitioner herein, but no such incident occurred. However, it is

always open to the petitioner to complain either to the Judge, Family Court

or to any other Court whenever such a threat is posed. As held by the

Hon'ble Supreme Court in Sangeetha Allas Shreya (3 supra) if any threat is

given, the respondent can always complain to the Court and such a

complaint will be considered by the Court on its merit. Further, between a

husband and a wife, the convenience of the wife must prevail particularly

when wife has to travel along with her minor daughter.

13. In the present case also, wife is living along with her minor child at

Nalgonda, respondent/husband has filed divorce OP on the file of the

Judge, Family Court at Hyderabad through power of attorney holder, who is

his elder brother and every date of hearing, the petitioner along with her

minor daughter has to travel to Hyderabad for attending the case. It is not

the case of the respondent that the petitioner is gainfully employed or that

he has been paying maintenance to the petitioner or their minor child.

14. Therefore, in the above factual backdrop and the principles laid

down in the decisions relied by the learned counsel for the petitioner and

the respondent, I am of the considered opinion that in such a case, the

convenience of the wife must prevail over the convenience of the husband

and accordingly the present transfer petition deserves to be allowed.

15. In the result, the Transfer Civil Miscellaneous Petition is allowed

and FCOP NO.712 of 2019 pending on the file of the Judge, Family Court,

City Civil Court at Hyderabad is ordered to be withdrawn and transfer the

same to the Judge, Family Court at Nalgonda for disposal in accordance

with law. The learned Judge, Family Court, City Civil Court, Hyderabad,

shall transmit the entire record duly indexed, within one month from the

date of receipt of a copy of this order. No order as to costs.

16. Pending miscellaneous petitions, if any, in this petition shall also

stand dismissed.

_______________________________ A. VENKATESHWARA REDDY, J.

Date: 17.11.2021 Isn