Latha and Others vs Basavaraj

B. Veerappa, J.—The wife field the above Civil Petition under Section 24 of Code of Civil Procedure, seeking to transfer M.C. No. 28/2014 pending on the file of Senior Civil Judge and JMFC, Ron to the Family Court, Dharwad.

It is the case of the petitioner, that the petitioner and respondent got married on 2.4.2004 according to the Hindu rites and customs and out of their wedlock two children were born. It is averred in the petition, that the first child was delivered on 13.11.2005 and the 2nd child was born on 4.3.2014. The trouble started in the Family of the respondent when the petitioner was pregnant for the first time, the respondent and his family members did not take care nor provided proper medical treatment and proper food to her and respondent''s mother and sisters used to abuse calling her as bad omen to the family and also demanded additional dowry and when the harassment and cruelty meted out was beyond tolerance, the matter was taken before elders and even the advise of elders to the respondent and his family members went in vain. However, as an eyewash the respondent put the petitioner with her infant son in a very old and dilapidated house, which had severe impact on the health of the petitioner and infant son. There was a marriage of a younger brother of the respondent in April 2012 and he did not come to take her to attend marriage in his family and when she went very next day with her baby and mother she was abused, insulted and physically assaulted by the respondent and his family members for, which complaint has been filed at Neragal police station and by the intervention of elders the same was not pressed. Meanwhile, the petitioner delivered second male child on March 2014 at her parental place after which neither the respondent nor any of his family members came to see the new born baby and even despite requests made by the petitioner, the respondent has not taken her back to his house and hence the petitioner has taken shelter in her poor parents house at Hebballi village of Dharwad District. The respondent runs automobile shop at Neregal town and has more than 40 acres of fertile lands and irrigated lands, deriving annual income of around Rs. 50 lakhs.

The petitioner having been deserted by her husband/respondent and his family members, is unable to maintain herself nor she has no source of income of her own. Therefore, she filed petition for maintenance against the respondent in Crl.Misc.111/2014 on the file of Family Court, Dharwad on 9.7.2014 along with the application for interim maintenance and the Family Court, Dharwad, granted maintenance of Rs. 3,000/- per month to the petitioner and Rs. 2,000/- per month each to the minor sons. The notice/summons to the respondent was issued on 14.07.14 and was received by the respondent/husband on 25.07.14. The respondent in order to avoid payment of maintenance and also to harass the petitioner, filed a petition under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights on 4.8.2014 on the file of the learned Senior Civil Judge and JMFC, Ron, in M.C. No. 28/2014 and notice of the said petition has been ordered to the petitioner.

The petitioner contends that she being a young lady cannot travel from Hebballi village in Dharwad District to Ron to attend the M.C. No. 28/2014 at Ron, which is about 100 Kms from Hebballi, along with her minor children. She states that presently she is staying along with her children at her parents house at Hebballi village and they are totally dependent on her parents income and the petitioner does not have her own source of income and she cannot afford to spend for litigation expenses and traveling expenses to travel along with her minor children and attend the Court at Ron on every date of hearing regularly. Therefore, she has sought for transfer of M.C.28/14 pending on the file of Senior Civil Judge and JMFC, Ron to Family Court, Dharwad.

The respondent/husband has not filed any objections.

I have heard the learned Counsel for the parties to the lis.

Sri. S.S. Yadrami, learned Counsel appearing for the petitioners reiterated the averments made in the civil petition and sought to allow the petition.

On the contrary Sri. S.S. Sajjan, learned Counsel appearing for the respondent, opposed the transfer on the ground that the petitioner can attend the Court at Ron, as she has sound source of income to maintain herself and her children and the allegations made against the respondent and his family members are false and are made only to draw support to her case. There are no valid reasons to allow the petition and therefore, he sought to reject the civil petition.

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

It is admitted that the marriage of the petitioner and respondent took place on 2.4.2004 and out of their wedlock two children were born one is aged about 9 years and the other is aged about 7 months old. Admittedly, due to allegations and counter-allegations against each other, the petitioner and her children are deserted from the house of the respondent-husband and they have taken shelter at her parents house at Hebballi. According to the learned Counsel for the petitioners, the quantum of maintenance awarded by the Family Court, Dharwad, is not sufficient to maintain herself and her children. According to the petitioner, the distance between Hebballi village and Ron is about 100 Kms and she cannot travel along with her breast feeding baby of 7 months such a long distance and cannot afford to meet the traveling expenses and litigation expenses on every date of hearing at Ron. Further, she states that the respondent is running automobile shop at Neregal town and is owning more than 40 acres of fertile land and irrigated land deriving income of Rs. 50 lakhs per annum, which is not denied by the respondent by filing objections.

Therefore, taking into consideration of the averments made in the petition filed under Section 24 of Code of Civil Procedure and also in view of the dictum of this Court in the case of Seema alias Preeti Vs. Pramod Chandrakant Vernekar, (2004) 4 KarLJ 572 , wherein this Court has held that, while considering the application for transfer of matrimonial proceedings, the convenience of the wife has to be looked into as laid down by the Supreme Court in the case of Sumita Singh Vs. Kumar Sanjay and Another, AIR 2002 SC 396 : (2001) 10 SCC 41 : (2001) AIRSCW 5193 : (2001) 5 Supreme 667 , this Court is of the view that it is fit case to allow the civil petition.

Accordingly, the civil petition is allowed. The proceedings in M.C.28/2014 pending on the file of Senior Civil Judge and JMFC, Ron, is ordered to be transferred to the Family Court, Dharwad. The learned Judge, Family Court, Dharwad, is directed to consider the case on merits and dispose of the same in accordance with law.

Since the main matter is disposed of, question of considering I.A.1 does not survive for consideration.