Telangana High Court

Smt.Yerram Manesha vs Yerramakshay Kumar on 6 March, 2024

       HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY

                           Tr.C.M.P.No.15 of 2024

ORDER:

This Transfer Civil Miscellaneous Petition is filed seeking

transfer of F.C.O.P.No.1666 of 2023 from the file of the Judge,

Principal Family Court-cum-XIII Additional Metropolitan

Sessions Judge at Charminar, Hyderabad, filed by the

respondent-husband, to the Family Court, Mahabubnagar.

2. In the affidavit, filed in support of this Tr.C.M.P., it is

averred that the marriage of the petitioner-wife was solemnized

with the respondent-husband on 04.05.2003. While so, the

petitioner unable to bear the physical and mental harassment

meted to her by the respondent, her in-laws and their relatives,

lodged a complaint against them on the file of Mahabubnagar

Police Station and a case in Crime No.102 of 2023 was registered

for the offences under Sections 498-A r/w 109 IPC and Sections 3

and 4 of the Dowry Prohibition Act. Subsequently, the

respondent filed FCOP.No.1666 of 2023 on the file of the Principal

Family Court, at Charminar, Hyderabad, seeking a decree of

restitution of conjugal rights.

2 LNA, J

2.1. It is averred that at present, the petitioner is residing along

with her parents at Mahabubnagar. That due to the matrimonial

disputes, the petitioner is suffering with mental trauma and

depression, as a result, she cannot travel all alone to attend the

Court proceedings in the aforesaid FCOP at Hyderabad and she

has to travel from Mahabubnagar to Hyderabad, along with her

aged father, who is suffering with old age ailments, which is very

difficult.

2.2. The petitioner further averred that she is apprehending

threat to her life in the hands of her husband, in-laws and their

relatives if she attends the Court at Hyderabad. Therefore, she

prays this Court to transfer the aforesaid FCOP to the Family

Court at Mahabubnagar.

3. The respondent filed counter-affidavit inter alia denying the

averments made in the affidavit as regards the allegation of

harassment against him and his family members. He further

stated that the apprehension of the petitioner that there is threat

to her life is in fact false. He stated that on 06.11.2023, the parents

of the petitioner and their relatives trespassed into their house, 3 LNA, J

broke the glasses, furniture and created nuisance, which clearly

establishes that there is a life threat not only to the respondent but

also to his parents and there is every chance of their attack by the

father of the petitioner and his muscle persons if the present

FCOP is transferred to the Family Court, Mahabubnagar. Hence,

he prays to dismiss the petition.

4. Heard Sri K.Lakshmi Manohar, the learned counsel for the

petitioner and Sri N.Amarnath, the learned counsel for the

respondent. Perused the material available on record.

5. Learned counsel for the petitioner would submit that due

to matrimonial disputes, the petitioner is residing with her

parents at Mahabubnagar. He submits that it is difficult for the

petitioner to travel all alone from Mahabubnagar to Hyderabad to

attend the Court proceedings in the FCOP as she is suffering with

mental trauma due to the strained relationship between her and

the respondent. The distance between Mahabubnagar and

Hyderabad is 100 kms. Therefore, he prayed to transfer the

F.C.O.P. filed by the respondent to the Family Court at

Mahabubnagar.

4 LNA, J

5.1. Learned counsel for the petitioner further contended that

in the transfer proceedings of matrimonial disputes, the

convenience of the wife has to be considered vis-à-vis the

convenience of the husband, and therefore, the request of the

petitioner-wife needs to be considered. In support of the said

contentions, the learned counsel for the petitioner has relied upon

the judgment of the Hon'ble Supreme Court in Sumita Singh Vs.

Kumar Sanjay 1.

6. On the other hand, the learned counsel for the respondent

would submit that within span of 2 months and 2 weeks after

marriage, the petitioner left the matrimonial house and her

parents were continuously raising disputes, due to which the

respondent is mentally suffering. Therefore, the respondent filed

F.C.O.P. in the Principal Family Court at Hyderabad, praying for

a decree of restitution of conjugal rights. Learned counsel

contended that the petitioner is making adverse allegations

against him and his family members without any proof. He

further contended that the respondent is ready to bear the bus

AIR 2002 SC 396 5 LNA, J

fare from Mahabubnagar to Hyderabad whenever the petitioner

attends the Court at Hyderabad. By submitting thus, the learned

counsel for the respondent prays to dismiss the petition. He relied

upon the decision of the Hon'ble Supreme Court in Anindita Das

Vs. Srijit Das 2, whereby the Transfer Petition filed by the

petitioner-wife was dismissed.

7. In order to decide this Tr.C.M.P., it is not necessary to delve

into the merits of the case and the allegations made by the

petitioner and the respondent against each other.

8. Admittedly, the petitioner is residing with her parents at

Mahabubnagar, which is at a distance of 100 kms from

Hyderabad. The petitioner's case is that she apprehends threat to

her life at the hands of her husband, her in-laws and their

relatives if she attends the Court at Hyderabad. That apart, the

petitioner stated that due to the matrimonial disputes, she is

suffering with mental trauma and depression and as such, it is

difficult for her to travel all alone from Mahabubnagar to

Hyderabad to attend the proceedings in the FCOP. On the said

(2006) 9 SCC 197 6 LNA, J

grounds, the petitioner seeks transfer of the FCOP from the

Principal Family Court, Hyderabad to the Family Court,

Mahabubnagar.

9. In Anindita Das's case (2nd cited supra), which was relied

upon by the learned counsel for the respondent, the Hon'ble

Supreme Court held as under:

"This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grand parents available to look after the child. The Respondent is willing to pay all expenses for travel and stay for the Petitioner and her companion for every visit when the Petitioner is required to attend the Court at Delhi.

Thus, the ground that the Petitioner has no source of income is adequately met. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out."

10. The facts of the said case and the facts of the present case

are different and thus, the above judgment has no application to

the present case.

7 LNA, J

11. The Hon'ble Supreme Court in NCV Aishwarya Vs

A.S.Saravana Karthik Sha 3 held as follows:

"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."

12. The principle of law laid down by the Hon'ble Supreme

Court in N.C.V.Aishwarya's case (3rd cited supra), has been

reiterated by the High Court of Bombay in Devika Dhiraj Patil

Nee Devika Jayprakash Buttepatil v. Dhiraj Sunil Patil 4, and

observed as under:-

"In a country like India, important decisions such as marriage, divorce are still taken with the guidance and

2022 SCC Online SC 1199

(2023 SCC OnLine Bom 1926) 8 LNA, J

blessings of elders in the family. For a lady to travel alone for the proceedings to a Court where the fate of her marriage is going to be decided without any family member would definitely be a matter of concern and cause not only physical inconvenience but also emotional and psychological inconvenience

13. Further, the High Court of Bombay in Priyanka Rahul

Patil v. Rahul Ravindra Patil 5 followed the principle laid down

in N.C.V.Aishwarya's case (3rd cited supra) and Devika Dhiraj

Patil Nee Devika Jayprakash Buttepatil's case (4th cited supra),

and held as follows:-

"The underlying principle governing the proceedings under Section of the CPC, is that convenience of the wife is to be preferred over the convenience of the husband."

14. Thus, there are catena of decisions of the Hon'ble

Supreme Court and other High Courts to the effect that in

matrimonial matters/disputes, while considering the application

for transfer of the proceedings from one Court to another Court,

the Courts must prefer the convenience of the wife over the

convenience of the husband.

(2023 SCC OnLine Bom 1982) 9 LNA, J

15. In the present, case, a perusal of the record discloses that

the petitioner is seeking transfer of the F.C.O.P. filed by the

respondent from the Principal Family Court, Mahabubnagar, to

the Family Court, Hyderabad, on the ground that she is

apprehending threat to her life if she comes to Hyderabad to