Sarita vs Krishna

B. Veerappa, J—The wife filed the above Civil Petition under Section 24 of the Code of Civil Procedure against the respondent-husband to transfer M.C. No. 3/2015 on the file of Senior Civil Judge and JMFC, Mudhol, to the Court of Senior Civil Judge & JMFC, Davanagere.

It is the case of the petitioner that the marriage between the petitioner and respondent was performed on 30.1.1996 at Banashankari Kalyan Mantap, Dharwad, and out of their wedlock two male children were born, who are named Pranav and Pawan aged about 16 and 18 years respectively.

The respondent who is the practicing Advocate at Mudhol used to torture the petitioner physically as well as mentally to get money from her parental house to construct a house of his own and petitioner tried to raise some funds from her mother and as well as her sister and they have given money to the respondent to construct the house. After construction of the house, the husband developed illicit relationship with another lady by name Vandana Kulkarni. The said news was spread in Mudhol since it is a small town. Due to said publication, the practice of the respondent was also hampered and the behavior of the respondent became even more worse when the respondent went to Bangalore to build up his career in the field of Music. After one year, he took his wife and children. Husband forced the wife to entertain some persons like the Associate Director and other persons, when the petitioner did not agree, the husband forced her physically by hitting her and ill treating her to do all the outrageous act. At that time, petitioner left the house of the respondent and rushed to her mother''s house, the petitioner could not reach her mother''s place, because the husband threatened the petitioner''s mother not to allow the petitioner and provide shelter in the house otherwise, he will file criminal petition because of the which the petitioner was unable to get protection in the matrimonial home and even her parents were unable to support the petitioner. In view of the threat by the respondent and when the petitioner was not able to get any support from her relatives, the petitioner was forced to approach one of their family friend whose wife and children supported the petitioner by giving shelter in their house and thereafter the respondent filed the criminal miscellaneous case against the petitioner for the offence punishable under Sections 363, 409, 420 and 506 r/w. Section 34 of IPC and he obtained anticipatory bail before the District & Sessions Court, Bagalkot. The respondent being an Advocate at bar has tried to mislead the Bar Association at Mudhol and petitioner is having fear of any legal support from the Bar. It is the further contention of the petitioner that herself and her sons are also having threat to their life. Petitioner made all efforts to reconcile the relations with the respondent but found no elders in the society to interfere with the reconciliation as the behavior of the respondent is very harsh and elders are also not comfortable in helping the petitioner and her son by facing the threat from the respondent. She further contended that she is not employed at present and having the burden of educating the 2nd son who is with her and presently studying SSLC and she has to be present with him for moral support. As the result of SSLC would have greater impact on his future career, moreover without any legal support the petitioner is unable to engage a counsel to take up her case. The petitioner is not financially independent and she is in search of a job to make her livelihood etc. Therefore, she sought for transfer of M.C. Petition as prayed for.

The respondent filed objections and denied the entire plaint averments and contended that the M.C. case is posted for judgment and cannot be transferred now at this stage. Since the Civil Petition, itself is not maintainable as the trial of the said case is over and the case is posted for pronouncement of the judgment on the main petition. Therefore, the grounds pleaded by the petitioner in the present petition has become infructuous and hence Civil Petition is liable to be dismissed.

It is also contended that the MC case is posted for pronouncement of the judgment. Petitioner has not taken any steps to recall the order, therefore the Civil Petition is not maintainable when the Trial is over no prayer for transfer of the case from one Court to the other would survive and also contended that the prayer of the petitioner cannot be considered. In fact if the request of the petitioner is considered, it will be more inconvenient for the respondent to attend the Court. The respondent has got aged parents to be maintained, he himself is suffering from high Blood Pressure and if the case is transferred from Mudhol to Davanagere, it would cause inconvenience to him. Since Davanagere has nothing to do with the matrimonial place of the parties. Therefore he sought for dismissal of the petition.

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

Smt. Sunitha P. Kalasoor, learned counsel for the petitioner vehemently contended that on 20.4.2015, the husband of the petitioner was examined as P.W. 1. Her counsel was absent and therefore, she could not cross-examine P.W. 1 without giving an opportunity to the wife, the Trial Court has closed the evidence and matter was directly posted for argument on 30.4.2015. On 30.4.2015 though representation was made on behalf of the petitioner-wife and sought adjournment, it was not granted, but posted the matter for further arguments on 3.6.2015. On 3.6.2015 representation was made on behalf of the wife with regard to the pendency of the Civil Petition before this Court and it was adjourned to 10.6.2015. On 10.6.2015 no representation was made on behalf of the wife, therefore it was heard on behalf of the respondent and posted the matter for judgment. She also contended that at that stage of the proceedings this Court can exercise power under Section 24(1)(b)(ii) of the Code of Civil Procedure and she further contended that absolutely there was no opportunity for the wife before the MC Court to put forth her case, therefore she sought for allowing the Petition.

Per contra, Sri Hebballi, learned Counsel for the respondent -- husband vehemently contended that a false affidavit is filed before this Court and obtained Ex-parte interim order of stay suppressing the material facts of the case. The contentions put forth before this Court is contrary to the facts. In fact in MC. No. 3/2015 she has engaged an advocate by name SSS who represented the Court on 20.2.2015 on request her objections were filed. Based on the request by the learned counsel, the Trial Court adjourned the same to 20.3.2015. Respondent Nos. 1 and 2 and their counsel were absent on that day. The Court has found that no objections were filed on behalf of respondent Nos. 1 and 2. Again on 31.3.2015 JTS for SS filed I.A. 2 under Section 151 of CPC seeking permission to file objections. The said application was allowed and permitted to file objections. The Petitioner - wife filed objections. Thereafter the matter was posted on 20.4.2015 for evidence. On that day husband was examined as P.W. 1 and produced documents Ex. P1 to P25 and also examined two witness. P.Ws. 2 and 3 and respondents 1 and 2 their counsels are absent. Cross-examination was taken as nil and posted the matter for arguments and on 30.4.2015. On 30.4.2015 again respondent Nos. 1 and 2 and their counsel were absent. No representation was made on that day the Trial Court heard Sri KVK, learned counsel for the husband and posted for further arguments on 3.6.2014 on that day Sri SS for R-1 filed memo to the effect that he has filed transfer petition in CP No. 100046/2015. He desires to produce the said order, if any. Counsel for the husband objected for the same, but however the Court permitted to produce the order copy or stay order by 10.6.2015 on 10.6.2015 the respondent was absent, no representation was made on behalf of the parties and the matter was posted for judgment on 20.6.2015. The said material facts has been suppressed in the present Civil Petition and the petitioner has not come to the Court with clean hand and therefore she is not entitled to relief under the provisions of Section 24 of CPC. Therefore, he sought for dismissal of the petition.

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

The marriage between the parties is not in dispute and out of their wedlock two children were born and they are aged about 16 and 18 years now, and it is also not in dispute that M.C. No. 3/2015 filed by the husband for divorce under Section 13(1a)(1b) of Hindu Marriage Act, 1955. The petitioner-wife also engaged an advocate before the Trial Court, who represented her on several dates and also filed an application seeking permission to file objections. The said application was allowed and the Court permitted the wife to file objections and ultimately after completion of the evidence of respondent-husband and PW Nos. 1 to 3 the matter was posted for arguments. On that day the petitioner-wife and their counsel were absent. Therefore it was posted for arguments. All these facts go to show, that opportunity was given before the Trial Court to represent her case.

In view of the admitted facts that the matter is posted for judgment, before the Trial Court noting various dates there is no possibility to transfer M.C. No. 3/2015 from Mudhol to Davanagere, since the matter is already posted for judgment and there is nothing to be tried before the Mudhol Court, as the trial is over, therefore, at this stage, it is not proper to exercise the powers under Section 24 of Code of Civil Procedure. Section 24(1)(b)(ii) of Code of Civil Procedure relied upon by the learned counsel for the petitioner reads as under:-

"(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or"

A plain reading of the said provision makes it clear that on the application of any of the parties and after notice, the parties are to be heard or without such notice the High Court or a District Court at any stage can transfer the same for trial or disposal to any Court subordinate to it and try to dispose of the same.

In the present case, trial is already over and matter is posted for judgment and there is nothing to be tried and no need to be considered for disposal of the proceedings before the Family Court and the petitioner-wife has suppressed all the material facts, before this Court and she has not approached this Court with clean hands and the same is nothing but abuse of the process of this Court and therefore, the prayer of the petitioner to transfer M.C. No. 3/2015 from Mudhol to Davanagere, cannot be considered at this stage, in view of the objections filed by the respondents and the affidavit filed by the petitioner is contrary to the material document. This Court is of the considered opinion that petitioner has not made out any ground to grant relief in the Civil Petition.

Accordingly Civil Petition is dismissed.