Jonnagaddala Swathi vs L.Karthika Chakravarthy
2022 Latest Caselaw 1741 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                     Tr.C.M.P.No.4 of 2022
ORDER:

1. This Transfer Civil Miscellaneous Petition is filed by

the petitioner/wife against the respondent/husband under

Section 24 of the Civil Procedure Code, 1908 (for short

'CPC') for withdrawal of FCOP No.994 of 2021 pending on

the file of the Judge, Family Court at City Civil Court

Hyderabad and to transfer the same to the Judge, Family

Court at Karimnagar and pass any such other orders as

this Court deems fit and proper.

2. Notice of the respondent/husband is served. He filed

a detailed counter denying the petition averments. Heard

the learned counsel on both sides. The detailed

submissions have been made by both the parties, which

are more or less on pleaded lines. Therefore, it may not be

necessary for this Court to refer in detail such

submissions. However, the submissions so made have

received due consideration of the Court.

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3. The main averments of the affidavit filed in support of

the petition that the petitioner is legally wedded wife of the

respondent, their marriage was solemnized on 26.11.2017,

they led happy marital life for some time and out of the

wedlock, they were blessed with a male child. Thereafter,

differences arouse between them, she was driven out of the

house of the respondent and ever since then she is living

with her parents. The respondent has filed OP No.994 of

2021 on the file of the Judge, Family Court at City Civil

Court, Hyderabad for dissolution of marriage. It is causing

lot of inconvenience to her to attend the Court at

Hyderabad on each and every date of hearing along with

her minor child by travelling a distance of 200 kms,

accordingly prayed to withdraw FCOP No.994 of 2021 from

the file of Family Court, City Civil Court, Hyderabad and to

transfer the same to the Family Court at Karimnagar.

4. The respondent has filed a detailed counter. The

main averments of the counter are that the distance

between Karimnagar and Hyderabad is only 145 kms and

not 200 kms as stated by the petitioner. It takes hardly

AVRJ Tr.CMP No.4 of 2022

2½ hours by public transport to reach Hyderabad from

Karimnagar. The petitioner did not appear before the Court

on 17.11.2021 and the Court is directed the petitioner to

bring the child on 30.10.2021 and also on 30.11.2021, but

she has intentionally failed to produce the minor child.

Though the matter was adjourned to 18.02.2022 for filing

counter, she in utter disobeyed of the court directions,

failed to produce the minor child at any point of time. He

has taken a plea that he is ready and willing to pay the

conveyance charges to the petitioner for attending the

Court on each and every date of hearing and that the

convenience of wife is not a ground for transfer of

matrimonial dispute.

5. Section 24 of CPC deals with the general power of the

High Court and District Courts for transfer of proceedings

from one court to another court. The claim of the

petitioner is that she is the legally wedded wife of the

respondent and that out of wedlock, she gave a birth to a

male child, she along with her male child are living with

her parents. This aspect of the petitioner's case is not in

AVRJ Tr.CMP No.4 of 2022

dispute by the respondent. His only contention is that the

petitioner has failed to attend the proceedings before the

Family Court regularly. She has also failed to produce the

minor child, despite instructions from the Family Court,

Hyderabad and that the respondent is ready to pay the

conveyance charges of the petitioner for her attendance on

each and every date of hearing. The learned counsel for the

respondent/husband has relied on the principles relied on

the following decisions:

i) Kalpana Deviprakash Thakar v. Deviprakash Thakar1;

ii) Anindita Das v. Srijit Das2;

iii) Teena Chhabra v. Manish Chhabra3;

iv) Kanagalakshmi v. A. Venkatesan4;

v) Priyanka Batra v. Manish Batra5;

vi) Gargi Konar v. Jagjeet Singh6;

vii) Sarita Singh alias Babli Baghel v. A.P. Baghel7; and

viii) Preeti Sharma v. Manjit (unreported Sharma judgment of Hon'ble Supreme Court in T.P. (Civil) No.117-118 of 2004;

1996 (11) SCC 96 = 1996 LawSuit (SC) 1785

(2006) 9 SCC 197 = 2005 LawSuit (SC) 1148

(2004) 13 SCC 411 = 2004 LawSuit (SC) 1056

(2004) 13 SCC 405 = 2004 LawSuit (SC) 1067

(2005) 12 SCC 236 = 2005 LawSuit (SC) 1716

(2005) 11 SCC 446 = 2005 LawSuit (SC) 663

(2005) 12 SCC 376 = 2004 LawSuit (SC) 1497

AVRJ Tr.CMP No.4 of 2022

I have given my thoughtful consideration to the

principles laid in the above decisions.

6. Per contra, the learned counsel for the petitioner/wife

has relied on the principles laid in Rajani Kishor Pardeshi

v. Kishor babulal Pardeshi8 and argued that in such

matrimonial disputes, the convenience of the wife is to be

preferred over the convenience of the husband and the wife

is entitled for the withdrawal of FCOP pending on the file of

the Judge, Family Court at City Civil Court, Hyderabad

and to transfer the same to the Judge, Family Court at

Karimnagar where she is living.

7. The Hon'ble Supreme Court in another decision

reported in Sangeetha alias Shreya v. Prasant Vijay

Wargiya9 while dealing with the similar facts held that

between husband and wife, the convenience of the wife

must prevail particularly when the wife has a 2 ½ year-old

child.

(2005) 12 SCC 237 9 (2004) 13 SCC 407

AVRJ Tr.CMP No.4 of 2022

8. In Sumita Singh v. Kumar Sanjay and another10 also

in a case of divorce filed by the husband against the wife,

the Apex Court held that it is the wife's convenience that

must be looked into while considering the transfer petition.

9. Reverting back to the facts of the present case, it is

not the case of the respondent/husband that the petitioner

/wife is gainfully employed and that she is able to maintain

herself and their minor son. It is also not the case of the

respondent that he has been paying the maintenance

either to his wife or to their minor child. In such facts and

circumstances of the case, as the respondent/husband has

not taken any steps ever since the birth of minor child

either to look after him or to pay any maintenance, such

offer of the husband that he is ready and willing to pay the

conveyance charges to the wife for her appearance before

the Judge, Family Court at Hyderabad on each and every

date of hearing has no bona fides and not acceptable.

10. I have given my thoughtful consideration to the

principles laid in the decision laid by the learned counsel

(2001) 10 SCC 41

AVRJ Tr.CMP No.4 of 2022

for the respondent/husband. Though the Hon'ble Supreme

Court in all the above decisions held that the convenience

of wife can be compensated by the husband by paying

conveyance charges, each case depends on its own facts

and the principles laid in the above decisions are

distinguishable with the facts of the present case. A close

similarity between one case and another case itself is not

sufficient to apply the principles laid in the above

decisions, more so, in view of the fact that there are no

bona fides in the offer made by the husband and it is not

his case that he has either paid maintenance or other

expenses to his minor child or to his wife at any point of

time.

11. In such facts and circumstances of the case, the

principles laid in the decisions 1 to 8 cited supra relied by

the learned counsel for the respondent/husband are not

helpful to the respondent as there are no bona fides in the

offer made by the respondent/husband.

12. Whereas, in view of the principles laid by the Hon'ble

Supreme Court of India in Rajani Kishor Pardeshi and

AVRJ Tr.CMP No.4 of 2022

Sangeetha's cases (8th & 9th supra), between the

convenience of husband and wife, the convenience of wife

along with minor child will prevail and it has to be given

preference over the convenience of the respondent/

husband.

13. In that view of the matter and for the reasons stated

above, I find justification in the request of the petitioner/

wife for withdrawal of FCOP pending on the file of Judge,

Family Court at Hyderabad and to transfer the same to the

Judge, Family Court at Karimnagar.

14. In the result, the Transfer Civil Miscellaneous Petition

is allowed. FCOP No.994 of 2021 pending on the file of the

Judge, Family Court at City Civil Court, Hyderabad is

ordered to be withdrawn and transferred to the Judge,

Family Court at Karimnagar.

15. In the facts and circumstances of the case,

considering the request of the learned counsel for the

respondent, the learned Judge, Family Court at

Karimnagar is directed to expedite the disposal of the

matter, without granting unnecessary adjournments. The

AVRJ Tr.CMP No.4 of 2022

learned Judge, Family Court at City Civil Court,

Hyderabad, shall transmit the entire record in FCOP

No.994 of 2021 duly indexed, within one month from the

date of receipt of a copy of this order. However, there shall

be no order as to costs.

As a sequel, interlocutory applications, if any pending

shall stand closed.

__________________________________ A. VENKATESHWARA REDDY, J.

Date: 06.04.2022 Isn