Akshatha Javali Ravi @ Akshatha Jr vs Ashvith @ Ashvith Amin

C.M. Poonacha, J

The present petition is filed under Section 24 of the Code of Civil Procedure, 1908 (HEREINAFTER REFERRED AS TO ‘CPC’) by the wife seeking for transfer of MC.No.373/2024 pending on the file of the I Additional Principal Judge, Family Court, Dakshina Kannada, Mangaluru, to the Court of the Senior Civil Judge and JMFC, Mudigere, Chikmagaluru.

Heard submissions of learned counsel Sri. Ashwin Joyston Kutinha appearing for the petitioner and learned counsel Sri Milash Arrol Noronha appearing for learned counsel Sri Brijesh Kalappa for the respondent – husband.

It is forthcoming from the records that the marriage between the parties was solemnized on 01.09.2022 and registered on 07.09.2022. That the parties were residing together for some time. However, due to various reasons, the parties have been residing separately.

The husband has instituted MC No.373/2024 under Sections 12, 13(1-a) (iii) of the Hindu Marriage Act, 1955 (HEREINAFTER REFERRED AS TO ‘ACT’), seeking that the marriage between the parties be declared as void or in the alternative to dissolve the marriage by a decree of divorce, which is pending before the I Additional Principal Judge, Family Court, Dakshina Kannada, Mangaluru. The wife has instituted MC No.9/2025 under Section 9 of the Act, for restitution of conjugal rights which is pending before the Court of the Senior Civil Judge and JMFC, Mudigere, Chikmagaluru. Seeking for transfer of MC No.373/2024, the present petition is filed.

Learned counsel for the petitioner contends that the husband is residing at Dubai and is prosecuting the proceedings initiated by him through his father who is his General Power of Attorney (HEREINAFTER REFERRED AS TO ‘GPA’) holder. It is further contented that the husband is gainfully employed, whereas the wife is unemployed and is dependent on her parents for her livelihood. That the wife will be put to great hardship if she is required to travel to Mangaluru for the purpose of contesting the proceedings initiated by the husband.

Per contra, learned counsel for the respondent vehemently opposing the relief sought for in the present petition, contends that the wife having entered appearance in MC No.373/2024 and after the attempts of mediation having failed, has subsequently instituted MC No.9/2025, consequent to which the present petition is filed. It is further contended that great hardship will be caused to husband, since his evidence by way of examination-in-chief has already been adduced in MC No.373/2024. Hence, he seeks for dismissal of the above petition.

Learned counsel for the petitioner, responding to the contentions put forth by the learned counsel for the respondent, contends that the wife had entered appearance in MC No.373/2024 before the Family Court at Mangaluru and had participated in the mediation proceedings, upon the failure of which, the matter was posted for filing of objections before the Court. That the wife was put to great difficulties in traveling to Mangaluru for the purpose of adequately instructing her counsel and without filing statements of objections, the matter having been posted for evidence, the husband has adduced his examination-in-chief. That great hardship is caused to the wife to effectively prosecute MC No.373/2024.

The submissions of both the learned counsels have been considered and the material record has been perused.

It is forthcoming that the husband is gainfully employed and having an independent source of income, whereas the wife is stated to be living along with her parents and is depending on them for her livelihood. It is further pertinent to note that the husband is residing at Dubai and is prosecuting the proceedings through his GPA holder, his father.

It is also pertinent to note that in MC No.373/2024, the objections of the wife having been taken as not filed on 12.03.2025 and the matter having been posted for evidence on 26.03.2025, on the said date the petitioner has filed his affidavit by way of examination-in-chief as also filed an application under Order VII Rule 14 of the CPC with documents. That the matter was adjourned for filing of objections to the said application.

Having regard to the fact that the husband has an independent source of income, whereas the wife is dependent on her parents for livelihood, as also since the husband in any event will be required to travel to Mudigere for the purpose of contesting MC No.9/2025, keeping in mind the settled proposition of law as held by the Hon’ble Supreme Court in the case of N.C.V. AISHWARYA VS A.S.SARAVANA KARTHIK SHA AIR ONLINE 2022 SC 1268, that while considering cases for transfer of matrimonial proceedings, the convenience of the wife will have to be given precedence to, it is just and proper that the relief sought for in the present petition be granted.

At this stage, learned counsel for the respondent submits that since the petitioner has already filed her affidavit by way of examination-in-chief, liberty be reserved to the husband to seek leave to appear in the further proceedings, before the transferee Court virtually through video conference.

In view of the aforementioned, the following:

ORDER

i. The above petition is allowed;

ii. MC.No.373/2024 pending on the file of the I Additional Principal Judge, Family Court, Dakshina Kannada, Mangaluru, shall stand transferred to the Court of the Senior Civil Judge and JMFC, Mudigere, Chikmagaluru to be tried along with MC No.9/2025;

iii. Both the parties shall appear before the transferee Court on 12.08.2025 without the requirement of any further notice being issued in this regard;

IV. Consequent to appearance of the petitioner, the transferee Court shall conduct further proceedings in accordance with law;

V. It shall be open to the husband to make an appropriate application before the transferee Court to participate in the proceedings, before the transferee Court whenever his personal presence is required virtually through video conferencing;

vi. It shall be open to the wife to file appropriate application before the transferee Court, to enable filing of statement of objections in the proceedings instituted by the husband;

vii. All contentions of the parties are left open.