Asma (Ayesha) vs Mujeer Ahmed

B. Veerappa, J.—The wife filed the above Civil Petition under Section 24 of the Code of Civil Procedure, to transfer O.S. No. 4/2014 on the file of the Family Court, Gadag to the Family Court, Belagavi, for adjudication between the parties.

It is the case of the petitioner that she is the legally wedded wife of respondent and their marriage was solemnised on 20.10.2011 at Bailhongal. The petitioner and respondent lead marital life at Gadag and thereafter, out of their wedlock, she gave birth to a male child on 16.03.2013 and thereafter, relationship between them got strained. The petitioner was discharging her matrimonial obligations as a good wife, but the conduct and behaviour of the respondent and his mother towards the petitioner was inhuman and highly objectionable. The respondent was in complete control of his mother and he is serving in Railways and he had no time to spend with the petitioner. The petitioner suffered at the hands of the respondent and his mother, physically and mentally. During November 2012, the petitioner informed her parents that she is pregnant and asked them to take her to Bailhongal for the proper medical care of herself and her child in her womb. Thereafter, the parents of the petitioner brought her to Bailhongal and there, she gave birth to a child. On the advice of the elders and Jamat members, the respondent took the petitioner along with the child to Gadag. Again the respondent''s mother started ill-treating the petitioner and her child. Immediately, the petitioner conveyed all these mishappenings in her matrimonial life to her parents. Under these circumstances, the petitioner was constrained to file Criminal Misc. Case No. 32/2014 under the provisions of Section 12(1) of the Protection of Women from Domestic Violence Act, 2005 and also filed Criminal Misc. Case No. 38/2014 under Section 125 of Cr.P.C. for maintenance, on 17.01.2014. The same is pending for adjudication.

As a counter-blast, the respondent filed O.S. No. 4/2014 before the Family Court, Gadag, for restitution of conjugal rights, only to harass the petitioner. It is also contended that the distance between Bailhongal to Gadag is about 200 km. and the petitioner along with her 1 1/2 year old child cannot travel alone on every date of hearing as she has to depend on her old father. The petitioner also contended that she apprehends that she may be physically man-handled by the agents of the respondent at Gadag. The respondent with mala fide intention just to harass the petitioner has filed O.S. No. 4/2014 on the file of the Family Court at Gadag. Therefore, she sought to allow the Civil Petition.

I have heard the learned counsel for both the parties.

Sri. Shashank S. Hegde, learned counsel for the petitioner, re-iterated the averments made in the civil petition.

Per contra, Smt. Rekha Patil, learned counsel for the respondent/husband objected to transfer the case as prayed for and she also contended that the petitioner herself left the respondent and the allegation made against the respondent/husband is baseless. The petitioner can very well attend the case at Gadag and the husband filed a petition for restitution of conjugal rights, which clearly indicates that the husband is still having love towards the petitioner. Therefore, the transfer petition will aggravate the relationship between the parties. Therefore, she sought for dismissal of the petition.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

It is an admitted fact that the marriage between the respondent and petitioner was solemnised on 20.10.2011 and it is also not in dispute that after the marriage, out of their wedlock, a male child was born on 16.03.2013, who is now aged about 1 1/2 years and it is also not in dispute that the petitioner filed two criminal cases at Bailhongal, viz. Criminal Misc. Case No. 32/2014 under Section 12(1) of the Protection of Women from Domestic Violence Act, 2005 and Criminal Misc. Case No. 38/2014 under Section 125 of Code of Criminal Procedure, 1973. Admittedly, the respondent/husband is attending the said two criminal cases on every date of hearing. It is also not in dispute that the distance between Gadag and Bailhongal is about 200 km and that the petitioner is having 1 1/2 years old child. As such, she cannot travel such a long distance on every date of hearing. The petitioner also made an allegation in the petition that she is apprehending that respondent may manhandle her if she attends the Court at Gadag.

The Hon''ble Supreme Court in the case of Sumita Singh Vs. Kumar Sanjay and Another, , has held that the convenience of the wife must be considered while passing orders under Section 24 of the Code of Civil Procedure.

In the present case, it is not in dispute that the respondent/husband is working in Railways and he will have a free pass to travel by train, on every date of hearing and there is no impediment for him to travel from Gadag to Belagavi, as he is already attending two Criminal Cases at Bailhongal. In view of the reasons stated above, the contention of the learned counsel for the respondent/husband that petitioner can attend the case at Gadag cannot be accepted.

Taking into consideration the young age of the petitioner and her 1 1/2 years child, and the distance between two places i.e., from Gadag to Bailhongal, it is a fit case to allow the Civil Petition, as prayed for.

Accordingly, the Civil Petition is allowed. O.S. No. 4/2014 on the file of the Family Court at Gadag is ordered to be transferred to the Family Court at Belagavi, for adjudication between the parties.