Pratibha vs Satish Kumar

G. Narendra, J.—Heard the learned counsel for the petitioner and the respondent.

The facts of the case are that the petitioner herein is the wife seeking transfer of the M.C. No. 71/2015 initiated by the respondent/husband praying for divorce on the ground of cruelty and which is pending on the board of the Family Court, Vijayapur to the board of the Senior Civil Judge at Sedam, Dist: Kalaburagi.

It is averred that the marriage of the petitioner and respondent was solemnized on 23.12.2012 at Sedam as per customs and traditions prevailing in the community and the marriage match making was finalized by the elders of the respective parties. After marriage they lived together as husband and wife and in harmony for a period of one month. Thereafter, the respondent and his family members started harassing her to bring money in spite of substantial amounts paid prior to the marriage and also gold and silver ornaments were given as gifts at the time of marriage and the said gifts were given with the hopes that the respondent would take proper care of the petitioner but the hopes were in vain. It is further stated that the petitioner parents have also intervened and advised the respondent against ill-treating the petitioner but the respondent is adamant and is not ready to acquiesce or heed to any of the requests made by the petitioner''s parents.

In the first week of June 2013 the respondent without any reason or rhyme drove out the petitioner from the matrimonial house. It is her further case that despite repeated request respondent has not provided any maintenance to her and that she has filed Criminal Misc. No. 427/2015 invoking the provisions of Section 125 of Cr.P.C. and the same is pending before the learned JMFC Court Sedam. A copy of the same is produced along with this petition as Annexure-A. Further the copy of the petition (the transfer of which is sought herein) is also produced as Annexure-B to this petition.

The learned counsel for the petitioner submit that it is very difficult for the petitioner to travel from Sedam to Vijayapur in order to attend the Court proceedings on each dates of hearing and that too without an escort. He would further state that the petitioner is a young lady and would not be able to withstand the rigors of a journey between Vijayapur and far away Sedam as it is tedious and cumbersome one. He would further submit that the petitioner is a simpleton and unemployed and has no independent source of income. He would state that she is presently residing with her parents at Sedam and is at their mercy. He would further submit that she is pursuing further education but the counsel does not elucidate as to where or in which college the petitioner is pursuing her education. He further states that the respondent is a Government Servant working in Raichur Thermal Plant and he can avail leave any time to attend the Court hearing on every date and that the respondent is having sufficient income and hence he can travel. He also submit that the respondent being a male he can travel anywhere and at any time. He would admit that the mother of the petitioner is a housewife and petitioner is the only daughter. He would state that the distance between Sedam and Vijayapur is about 240 Kms and the only mode of transport is bus and a bus travel is very tedious and causes immense hardship to a young lady like the petitioner. He would further state that in view of the strained relationship the husband''s family have turned treacherous and are likely to cause harm. He would also ask this Court to take cognizance of the fact that there is no security to woman in any nook and corner of the country. He would further submit that cases of harassment of single women is being reported from every nook and corner of the country on a daily basis.

The petitioner would also rely upon a decision of the Hon''ble Apex Court in the case of Sumita Singh V/s Kumar Sanjay and Another decided on 26.02.2001, wherein the appellant was residing and working in Delhi (wife) whereas the divorce proceedings were initiated at Ara a distance of 1100 Kms from Delhi, and the Court held, taking the residence and employment of the wife into consideration the Hon''ble Apex Court was pleased to order transfer of the proceedings from Ara to the Court of Delhi. The petitioner has relied on another judgment of this Court in the case of Jyoti v. Suryakant decided on 08.01.2013, praying for transfer of the M.C. case pending on the board of the Court at Humnabad to the Family Court at Gulbarga. The petition was moved on the ground that the respondent/husband was a practicing advocate in Gulbarga and was also businessman and that though the Court at Gulbarga in an earlier proceedings had awarded interim maintenance of Rs. 1,200/- per month. The respondent therein had failed to pay and that the petitioner/wife having no independent source of income, it was beyond her earnings to travel Humnabad and effectively defend the same and the Court taking note of the conduct of the husband in failing to abide by and respect the earlier decision of the Family Court Gulbarga to pay interim maintenance was pleased to direct the transfer of the proceedings from Humnabad Court to Family Court Gulbarga. The petitioner has also relied upon another judgment of this Court reported in Suhasini Vs. S.B. Mahendra Kumar , wherein taking note of the fact that the petitioner was a mother of a small baby and the fact that she did not have any independent source of income and keeping in view the fact that the husband/respondent therein was not maintaining her, thought it fit to allow the petition praying for transfer of the Family Court proceedings from the Court at Sagar to the Court at Hirekerur (Haveri District).

The citations referred above have been rendered in the peculiar facts of the said case where the petitioners/appellants/wives have demonstrated verifiable hardship or acceptable hardship and the Court being convinced by the same has been pleased to the relief.

In the present petition the questions that arises for consideration are;

"(a) Whether the petitioner has pleaded and proves or prima facie demonstrate any hardship?

(b) Whether petitioner has approached this Court with clean hands?"

The learned counsel for the respondent would stoutly resist the petition and she would submit that the petitioner has not approached this Court with clean hands and that she is guilty of misrepresentation and suppression of facts. She would submit that the petitioner though has produced a copy of the divorce proceedings as Annexure-B to the petition. He has deliberately omitted and suppressed the affidavit that has been filed by her before the Family Court at Vijayapur. She would submit that affidavit has been filed along with a petition under Section 24 of the Hindu Marriage Act, praying as follows;

"May it please your Honour;

For the reasons and grounds stated in the accompanying affidavit, it is prayed that, the petitioner may kindly be directed to pay a sum of Rs. 20,000/- per month towards interim maintenance amount and Rs. 50,000/- towards necessary expenses of the proceedings including travelling expenses in the interest of justice."

She would also draw the attention of the Court to the averments in the affidavit more specifically to the address therein. She has solemnly stated on oath that she is a student residing at Bengaluru. She would also draw the attention of the Court to the averments in paragraph No. 3, wherein it has been stated on oath that she is pursuing her MCA Masters degree in Bengaluru Institute of Technology and that she has started living separately as she had no desire to burden the parents any more and she has further sought a sum of Rs. 20,000/- per month towards interim maintenance and a sum of Rs. 50,000/- towards necessary expenses of the proceedings including travelling expenses till the disposal of the case. She would also referred to the averments in paragraph No. 5, where the amounts have been sought for prosecuting the case at Vijayapur including travelling expenses. She would state that in the very same proceedings the petitioner having made a petition for a direction to the husband to compensate her legal expenses and travelling expenses, it does not lie in the mouth of the petitioner to contend otherwise before this Court. She would state that when the petitioner suffers no hardship to undergo the travel from Bengaluru to Vijayapur, the plea of hardship raised in the present petition must be rejected at the threshold. She would state that though the petitioner was well aware as to what she has stated on oath before the Court at Vijayapur she has deliberately misrepresented before this Court and is guilty of suppression of material facts and the conduct of the petitioner amounts to and is contemptuous. She would further submit that the petitioner cannot be allowed to approbate and reprobate. It is a clear case of abuse of the process of the Court and a litigant who has approached the Court with unclean hands is not entitled to any relief at the hands of this Court.

The respondent counsel would further submit that it is an admitted fact that her hometown is Sedam and that she is the only child of her parents. It is also an undisputed fact that she is pursuing her higher education at Bengaluru and when the petitioner can travel more than 550 Kms between Sedam and Bengaluru without any escort or without any fear then she can always travel to Vijayapur from Bengaluru, which is about 350 Kms. She would further submit that by the very pleadings in the petition before the trial Court at Vijayapur, it can be deduced that the petitioner is accustomed to travelling and to travel alone. She also submits that the petitioner has in fact attended the proceedings on her own and occasionally along with her mother who is admittedly a house wife. She would also submit that the respondent father is employed in a managerial post in a private company drawing handsome salary and it is the father who is funding her visits and activities.

The respondent counsel would also rely upon the three judgments of the Hon''ble Apex Court reported in 2003 (11) SCC 731, wherein the Hon''ble Apex Court held that it had been established that the petitioner/wife was used to travel from place to place in connection with her family business and hence was pleased to reject that the travel was hazardous and would prevent her from effectively prosecuting the divorce proceedings initiated therein by the husband. In another decision reported in (2006) 9 SCC 197, involving a mother of six year old child, it was pleaded that she is not keeping good health, the Hon''ble Apex Court was pleased to reject the same on the ground that there are grant parents available to look after the child and that her plea of ill-health is not well founded in the absence of details and was pleased to reject the petition while directing the husband to provide for the travel for herself and her companion and also directed the husband to bear the cost of board and lodge. In another decision rendered in transfer petition (Civil) No. 683/2014, the Hon''ble Apex Court has been pleased to reject the petition by the wife.

I have given my thoughtful consideration and the underlying reasons that may be deduced from the various decisions is that the wife claiming transfer of proceedings from one Court to another must specifically plead and prima facie demonstrate her hardship and inability to do the same. In the case on hand, it has been demonstrated by the respondent counsel, on the strength of the affidavit filed, that the petitioner herein has not pleaded any difficulty in attending to the proceedings. On the other hand, she has sought for monetary compensation for the travel to be undertaken and legal expenses to prosecute the petition. It is stated that the said application is pending. In that view of the matter, this Court is of the considered opinion that, no hardship has been demonstrated by the petitioner. She cannot in blow hot and cold. Having declared before the Trial Court that she is willing to participate in the proceedings she is estopped from contending otherwise before this Court. She has not pleaded any specific reason contending otherwise before this Court. Moreover, the said application has also been actively suppressed before this Court. This Court is constrained to arrive at such a conclusion in view of the fact that though the copy of the divorce proceedings has been produced, the application filed therein by the petitioner under the provision of Section 24 have not been placed before this Court. In that view of the matter, this Court concludes that the petitioner has not approached with clean hands and is guilty of suppressing material facts from this Court rather the petitioner has contrived to screen the said affidavit from the scrutiny of this Court.

In view of the above discussion, this Court finds no good grounds to grant the relief prayed for in the petition. Accordingly, petition is dismissed with costs.

The cost payable by the petitioner is quantified at Rs. 5,000/- be deposited into the account of the Advocates High Court Library Funds, Kalaburagi Bench, within fifteen days from today and shall thereafter file the proof of payment in the registry for having paid the cost within fifteen days.