Roopa vs Sanjeev

B. Veerappa, J.—The wife filed the above Civil Petition under Section 24 of the Code of Civil Procedure to transfer M.C.39/2014 pending on the file of the Senior Civil Judge, Khanapur to the Family Court, Gadag.

It is the case of the petitioner that the petitioner and respondent were married as per the Hindu customs and rites on 25.2.2007 at Panchaxari Kalyan Mantap, Gadag. It is further alleged that the petitioner''s father has spent Rs. 6 lakhs for marriage expenses and after marriage the petitioner went along with respondent/husband to her matrimonial home at Itagi Tq:Khanapur. The respondent was working as Software Engineer at Hyderabad and therefore, the petitioner went to Hyderabad and both were staying at Hyderabad and out of the wedlock a male child was born on 14.9.2008. It is further submitted that the respondent changed his job and was working at Chennai. The petitioner''s father made financial assistance to the respondent and both petitioner and respondent were living along with the child who is aged about 6 years. Thereafter the respondent started insisting the petitioner to bring money and the petitioner tolerated and cooperated with the respondent. But the respondent-husband used to abuse the petitioner in filthy language and used to assault her physically. Further it is alleged that the respondent was addicted to alcohol and bad vices and when the petitioner wife advised him not to drink before the minor child which will have bad impression on the child, the respondent again assaulted the petitioner who was carrying and due to assault there was miscarriage. The doctor advised her to take bed rest and therefore, the respondent brought the petitioner and the child from Hyderabad to Gadag and left them in Gadag Railway Station. Thereafter the parents of the petitioner went along with the petitioner and the child to Hyderabad and advised respondent to take back the petitioner, but the respondent scolded them in filthy language. Therefore, they left the petitioner with respondent and came back to Gadag. Thereafter, against the respondent continued to torture and harass the petitioner and therefore, the petitioner left the respondent and came back to her parents house at Gadag along with the minor child and is residing with her parents at Gadag, and she filed M.C.78/2014 under Section 13(1)(b) of the Hindu Marriage Act for a decree of divorce on 11.7.2014. Subsequently the respondent/husband also filed M.C.39/2014 on 18.10.2014 under the provisions of Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights on the file of the Senior Civil Judge at Khanapur, with an intention only to harass the petitioner. Therefore there was no bonafides in the petition filed by the respondent husband who is addicted to bad vices.

The petitioner contends that she is residing with her parents at Gadag along with minor child who is going to school and she has no income of her own to maintain herself and the child. It is difficult for her to attend the case at Khanapur on every date of hearing and distance between Khanapur and Gadag is 150 Kms. She further contended that due to her poverty she is unable to bear the traveling expenses and litigation expenses on every date of hearing and that it will be very critical condition to attend the court at Khanapur since the respondent is abusing and scolding her in filthy language. She further states that the respondent who is Engineer is capable of attending the court at Gadag and therefore she prays to transfer M.C.39/2014 pending on the file of Senior Civil Judge at Khanapur to Family Court at Gadag.

The respondent has not filed any objections.

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

Sri. M.M. Patil, learned Counsel for the petitioner has reiterated the averments made in the petition and contended that the respondent husband is attending the court at Khanapur even though at present he is working at Puna and there is no difficult for him to attend the court at Gadag. Therefore, he sought to allow the petition.

Per contra, Sri. Suresh S. Shettemmanaver, learned Counsel for the respondent has denied the allegations made in the petition and contended that when the petitioner has filed herself the case at Gadag she has no difficulty to attend the court at Khanapur which is hardly about 150 Kms and it is more difficult for the respondent/husband to attend the court on every dates of hearing at Gadag Therefore, he sought to dismiss the writ petition.

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

The admitted facts are that the marriage held between the petitioner and the respondent was solemnized on 25.2.2007 and out of the wedlock a male child was born on 14.9.2008 which is aged about 7 years. It is also not in dispute that the petitioner filed M.C. No. 78/2014 on the file of the Family Court, Gadag under Section 13(1)(b) of the Hindu Marriage Act for divorce and thereafter the respondent -husband also filed M.C.39/2014 on the file of the Senior Civil Judge, Khanapur under Section 9 of the Hindu Marriage Act on 18.10.2014 seeking for restitution of conjugal rights. The petitioner has specifically pleaded that she has no means to maintain herself and the child and she is a housewife and she cannot travel from Gadag to Khanapur which is about 150 kms away along with the minor child who is aged about 7 years old, on every date of hearing. It is also not in dispute that the respondent/husband who is working as software engineer at Pune and he is attending both the cases at Gadag and Khanapur and he has got sufficient means to bear the expenses to attend the court at Gadag and Khanapur. Taking into consideration the age of the petitioner who is aged about 38 years and in the facts and circumstances of the case and in view of the law declared by the Hon''ble Supreme court in the Case of Seema alias Preeti Vs. Pramod Chandrakant Vernekar, (2004) 4 KarLJ 572 , wherein this court has held while considering the application under Section 24 of the Code of Civil Procedure for transfer of matrimonial proceedings, the convenience of 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 . Therefore, it is a fit case to transfer the case from Khanapur to Gadag.

Considering the entire material on record and in the facts and circumstances of the present case and in the light of the aforesaid judgments, the Civil Petition is allowed. M.C.39/2014 pending on the file of Senior Civil Judge, Khanapur is ordered to transfer to Family Court at Gadag, for adjudication between the parties.