Nandini @ Vidyashree Vivekananda Shet vs Vivekananda Sadananda Shet

B.S. Patil, J.—This civil petition is filed u/s 24 CPC, seeking transfer of M.C. No. 2/2013 pending on the file of Civil Judge (Sr. Dvn.), Honnavar to the Court of Civil Judge (Sr. Dvn.), Udupi. Petitioner is the wife of the respondent. Their marriage was solemnized on 19.04.1992 at Puttur Village in Udupi Taluk. Out of the wedlock, they have got two children. Now they are aged 11 years and 18 years. Petitioner is staying at Udupi in her own house along with her children. According to her, on account of ill-treatment and harassment given to her by the respondent and the neglect shown by him in supporting the petitioner and her children she was forced to stay at Udupi. Petitioner has filed a petition u/s 125 of Cr.P.C. in Case No. 423/2011 on the file of Addl. Civil Judge (Jr. Dvn.), "Udupi, seeking maintenance, which is contested by the respondent. She urges that with an ulterior intention and in order to further harass the petitioner, the respondent has instituted the proceedings u/s 9 of the Hindu Marriage Act in M.C. No. 2/2013 at Honnavar seeking restitution of conjugal rights only to cause inconvenience to the petitioner. It is in this background contending that Honnavar is situated at a distance of 350 Kms., from Udupi, the present petition is filed seeking transfer.

Learned counsel for the petitioner inviting the attention of the court to the material on record particularly, the counter statement filed on behalf of the wife in M.C. No. 2/13, submits that the petitioner is required to look after her elder son, who is studying in I year BCA Course in an Engineering College at Bantakal near Udupi and also the second son who is studying in Little Rock School at Bramhavara, will not be in a position to travel between Udupi and Honnavara to attend the case by leaving the children.

The respondent-husband vehemently opposed the petition. Learned counsel appearing for him takes me through the statement of objections filed contending that he was working in Arab country till 2010 and has sent from there all his earning to his wife; the assets both moveable and immovable possessed by the petitioner are out of the earning from the Gulf countries sent by the respondent. The petitioner has declined to come and stay with him in his native place at Honnavar, where he has built a house. The petitioner took away two sons with her to Udupi and has been living a luxurious life deserting the respondent. He also urges that petitioner''s brother, sister and brother-in-law are all Lawyers at Udupi and with their active help and instigation petitioner has neglected the respondent and has refused to live with him at Honnavar. He has produced Annexures-R6 & R7-certificates issued by the Doctors who treated him to show that he was suffering from defective vision, diabetes, high blood pressure and other aliments.

It is contended in the statement of objections that after he came back to Honnavar, his wife asked him to come over to Udupi stating that she would not be able to live with him at Honnavar. He was kept virtually in house arrest at Udupi and was compelled to file a petition for divorce by mutual consent in M.C. No. 131/2010 before the Civil Judge (Sr. Dvn.), Udupi. After the said petition was filed, the petitioner did not come forward to give evidence and accordingly the said petition came to be dismissed on 09.09.2011. Thereafter, petition seeking maintenance was filed. Hence, he has sought for dismissal of the present petition.

It is contended by the counsel that respondent is aged and not in a position to go to Udupi to prosecute the case which is filed for restitution of conjugal rights. It is also alleged that there is intimidation and threat to his life given by the close relatives of the petitioner, namely'', his brother, sister and brother-in-law, which has made it difficult for him to go over to Udupi. He has also stated that he sincerely and honestly felt that his life would be in danger, if he is forced to go over to Udupi. It is alleged by him that the distance between the two places is not 350 Kms., but is only 130 Kms. Learned counsel for the respondent has further contended that both the children are residing in a residential school and petitioner is not required to attend to them every day.

Learned counsel for the respondent-husband has relied on the following decisions in support of his contention that the plaintiff being dominus litis is entitled to institute the suit in any forum which the law allows him'', and that the court should not lightly change that forum and compel him to go over to Udupi which would subject him to serious inconvenience in the light of the facts pleaded.

(1) Indian Overseas Bank, Madras Vs. Chemical Construction Company and Others, ;

(2) Channaveerappa Vs. Channabasappa, ;

(3) Sudha Vs. Vaidyanathan, &

(4) Pratibha Khemka Vs. Sanjay Kumar Khemka, ;

He also contends that in the facts of the present case, no such hardship or inconvenience would be caused to the petitioner-wife to come over to Honnavar and defend herself keeping in mind the distance between the two places and the position of the parties both economically and physically.

I have considered the contentions urged by the learned, counsel for both parties. It is true withdrawal of a case pending on the file of the Court having jurisdiction and transferring the same to another Court shall not be acceded to lightly. The application filed seeking transfer has to be disposed of keeping in mind the ends of justice, particularly having regard to the facts and circumstances of each case.

In this case, petitioner-wife pleads that it will be difficult for her to travel all the way to Honnavar to contest the case filed by her husband seeking restitution of conjugal rights It is also her case that her husband-respondent herein has been appearing in the proceedings instituted by her u/s 125 Cr.P.C. seeking maintenance, hence, it will not result in any additional hardship for him to prosecute the case at Udupi, if the same is transferred to Udupi. She has also pleaded her responsibility towards her children.

The respondent has strongly contended that there is threat for his safety and security. He has supported the same by contending that on an earlier occasion, a petition for divorce by mutual consent was got filed at Udupi and the same was dismissed and that the petitioner has, without any justification, refused to come and stay with him in his own house at Honnavar. In addition, he has stated that the brother, sister and brother-in-law of the petitioner are lawyers practicing at Udupi and therefore, he apprehends that he would not be in a position to prosecute his case effectively, freely and in an atmosphere of freedom, if the case is transferred to Udupi. Apart from the same, he has produced medical records to contend that he is suffering from physical ailment which came in his way in undertaking frequent journey to distant places.

It is no doubt true that hardship will be caused to the petitioner to travel all the way to Honnavar covering a distance of about 130 kms., to defend herself in M.C. No. 2/2013. It is also true that if she is made over to stay overnight in Honnavar, it will further cause serious difficulty for her. However, it cannot be lost sight that the grounds on which the petition is resisted by the respondent is not only health grounds, but also the apprehension that there is danger to his safety and security. He cannot be forced to go over to Udupi by withdrawing and transferring the same from Honnavar to Udupi if it subjects him to serious inconvenience and pushes him into a state of insecurity to prosecute the case freely and fairly at Udupi.

Hence, having regard to the case on hand, keeping in mind the apprehension expressed by the respondent and the submission made by the counsel for the respondent that he is willing to prosecute the case, if it is transferred to Bhatkal or Kundapur, I am of the considered view that if the matter is transferred to the Court at Kundapur, it will meet the ends of justice and it will not be difficult for the petitioner to travel to Kundapur and defend herself. It will also address the apprehension of the respondent regarding his safety and security apart from ensuring that he can prosecute the case in a free and fair atmosphere.

In a matter like this, it is an absolute necessity that parties are allowed to prosecute or defend their case in an atmosphere where they feel that there is no unfair element which comes in the way of their prosecuting or defending the case. Since this important aspect can be addressed by transferring the case to Kundapur, I am of the view that this petition deserves to be allowed to that extent. In the result, this petition is partly allowed. M.C. No. 2/2013 pending on the file of the learned Senior Civil Judge, Honnavar is withdrawn and transferred to the Court of the learned Senior Civil Judge, Kundapur in Udupi District. It is further observed that parties are at liberty to request the learned Judge at Kundapur seeking exemption of their personal appearance and also for posting the case to the dates of their convenience, which I am sure will be taken note of by the learned Senior Civil Judge, Kundapur, subject to the Court''s convenience. It will be in the ends of justice to direct the Court below to make all endeavours to dispose of the case as expeditiously as possible at any rate within 12 months from the first date of appearance of the parties. Both parties are directed to appear before the Court at Kundapur on 17.02.2014.