Seema vs B.K. Jayavardhana

K.N. Phaneendra, J.—This petition is filed seeking transfer of matrimonial case filed by the husband (respondent) in MAT No. 13/2015 on the file of the Senior Civil Judge, Kudligi to the Court of Senior Civil Judge, Gokak.

The petitioner is present before the court. After service of notice, the respondent is represented through his counsel. The counsels appearing for both the parties submit that there is no possibility of settlement. Further, the petitioner reports the receipt of Rs. 5,000/- paid by the respondent towards the litigation expenses.

I have heard the arguments of the leaned counsel for the petitioner and the learned Counsel for the respondent and I have carefully perused the materials on record.

The learned Counsel for the petitioner has contended that the marriage between the petitioner and the respondent was solemnized on 2.5.2014 and since then, she was residing with her husband for some time. Thereafter, due to the ill-treatment and harassment by the respondent and his family members in demand of dowry, she was thrown out from her matrimonial home. Thereafter, she sheltered herself in her parental house and started residing at Arabhavi, Gokak Taluk. As the respondent has not made any arrangements for her maintenance, she was forced to file a petition claiming maintenance before the JMFC, Court at Gokak, which is registered in Crl. Misc. No. 181/2015. The said petition was filed on 8.4.2015.

It is also the case of the petitioner that she has also filed a complaint before the jurisdictional police in Crime No. 346/2014 for the offence punishable under Section 498A, 323, 504, 506 read with Section 34 of IPC. The said complaint was registered by the Police and the investigation is still under progress.

The said complaint was lodged before police on 24.12.2014. It appears after coming to know about the lodgment of the said Complaint before the jurisdictional police, the respondent has also filed a matrimonial dispute u/s. 9 of the Hindu Marriage Act before the JMFC Court at Kudligi in MAT No. 13/2015. The counsel for the petitioner has further contended that after coming to know about the filing of the Crl. Misc. petition, in order to harass the petitioner, the husband has filed the petition u/s. 9 before the Kudligi Court so as to see that the wife has to attend the court on all the hearing dates. Therefore, the petitioner has sought for transfer of MAT No. 13/2015 pending on the file of Court of Sr. Civil Judge and JMFC, Kudligi, filed by the husband to the Court of the Senior Civil Judge, Gokak.

The learned Counsel for the respondent has strenuously contended that the wife is not entitled for the transfer of the case as a matter of right. The grounds urged in the petition are not sufficient for the purpose of transferring the case. No leniency should be shown to the wife as she has filed this petition in order to harass the husband by seeking transfer of the case filed by him before the jurisdictional court. There must be strong reasons for transfer of the case. In this regard, he has relied upon a decision of the Hon''ble Apex Court reported in (2006) 9 SCC 197 between Anindita Das Vs. Srijit Das, and drawn my attention to the paragraph 3 of the judgment of the Hon''ble Apex Court which reads thus:

"3. This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met."

(Emphasis supplied)

The above said decision cited by the learned Counsel for the petitioner, in my opinion, is not in a straight jacket manner applicable to each and every case, the court itself has come to the conclusion that each case has to be decided on the facts and circumstances of the case and on its own merits. The court in a given peculiar circumstances, in that case has not accepted the grounds urged by the wife and therefore, refused to grant such relief. The said decision of the Hon''ble Apex Court cannot be applied universally to all the cases.

The learned Counsel has also relied upon another decision of this court passed in Civil Petition No. 534/2012 dated 26.09.2012 between Smt. Sneha Vs. Sri Vinayak, and drawn my attention to the 7th page, wherein this court has observed that�

"It appears, petitioner having stayed with her husband for more than a year, left her matrimonial home due to some misunderstanding. Thereafter, despite several requests made by the respondent''s family, according to his submission, petitioner did not turn out. As such, they filed a petition before the family court, Bangalore for a divorce having regard to the attitude of the petitioner. Petitioner also filed a petition before the Hubli Court for restitution of conjugal rights. The Supreme Court deprecating transfer of cases at the request of the woman, in the above cited case has opined that lenience shown to ladies by the court in such transfer cases is often misused and taken advantage. The very pleading of the petitioner is that, she cannot travel alone, being an orthodox lady cannot be accepted in view of the fact that she has studied upto MBA and she has worked in some private offices and having worldly knowledge and has also moved from place to place. Section 21(ii) of the Act provides for transfer of cases and where two cases are filed at different places, the case subsequently filed should be transferred to the court where the earlier case is filed. Having observed the same, this court has also rejected the transfer petition."

In my opinion, the above said ruling is also not applicable so far as the facts and circumstances of the present case. If the above said two decisions are looked into, on different set of facts and circumstances of those cases, the courts have taken independent decisions. Even in the second case cited, the court has observed that normally, the court has to transfer the subsequently filed case to the place where earlier case was pending.

Be that as it may, this court has to apply its judicious mind so far as the facts and circumstances of this case to ascertain whether the wife has made out a ground for transfer of the case. Admittedly, husband and wife are residing separately. The allegations of the wife is that due to the ill-treatment and harassment, she was forced to leave the conjugal company of the husband and started living with her parents. Therefore, she filed a maintenance case and also criminal complaint against the husband in order to take appropriate action for the offences alleged to have been committed by the husband.

As could be seen from the records, the husband who is living in Bengaluru, has filed a case at Kudligi, which shows that the husband has filed a petition for divorce at Kudligi for the purpose of attending the case at Kudligi, the husband has to travel from Bengaluru to Kudligi, whereas the wife has to travel from Gokak to Kudligi. The wife has already filed two cases one case is the Criminal complaint alleged against her husband and others, which is prior to the filing of the petition filed by the husband u/s. 9 of the Hindu Marriage Act for restitution of conjugal rights. Therefore, after coming to know about the lodgment of the criminal complaint, the husband has filed a petition at Kudligi. It goes without saying that the husband has to travel from Bengaluru to Kudligi as well as to Gokak for the purpose of attending the above said cases. On the other hand, the wife has to travel from Gokak to Kudligi to attend only one case.

Looking to the above said facts and circumstances, when husband has to attend the cases at two places, if the case filed at Kudligi is transferred to the Court at Gokak, it will also mitigate the inconvenience to the husband because of the simple reason that he can attend all the cases at one place. Further, added to the above said circumstances, the wife has categorically stated that she is unable to maintain herself. No arrangements have been made by the husband towards her maintenance and also for day today expenditure. Therefore, looking from all the surrounding circumstances, the case filed by the husband at Kudligi requires to be transferred to the Court at Gokak.

At the fag end of the arguments, the learned Counsel for the respondent submit that the respondent husband has life threat to go to Gokak, but he has not taken up this contention at the beginning anywhere. He has not even filed objections to the above petition specifically mentioning his inconvenience. If at all there is any life threat, he can as well make an application to the court for necessary protection. It appears, it is only an after thought, after the arguments have been made. I do not agree with the submissions made. Hence, the petition deserves to be allowed and I proceed to pass the following:

The petition is allowed. Consequently, the MAT No. 13/2015 filed u/s. 9 of the Hindu Marriage Act, by the husband pending on the file of the Senior Civil Judge & JMFC, Kudligi is hereby withdrawn and transferred to the Court of the Senior Civil Judge, Gokak to try and dispose of the same in accordance with law.

In the mean time, Registry is hereby directed to send a copy of this order to both the transferor and transferee court to enable the transferor court to transmit the records to the transferee court and that the transferee court is directed to secure the presence of the parties and proceed with the case by issuing notice afresh and dispose of the case in accordance with law.