Shuba Sondoor Gaddi vs Chidanand M. Gaddi

A.N. Venugopala Gowda, J.—This petition filed u/s 24 of CPC is to withdraw M.C 3397/2010 pending before the III Addl. Principal Judge, Family Court, Bangalore and to transfer the same to the Family Court at Dharwad, for trial and disposal

The marriage of the Petitioner and the Respondent was solemnized on 10.11.2005 at Shimoga. After marriage, they went to Dubai during November 2005. According to the Respondent, there was No. healthy marital relationship and there was unbearable development in his marital life and he could not continue to work as efficiently as he could and hence, they returned back to India on 14.04.2006. According to the Respondent, the Petitioner left his house on 09.05.2007 and did not return to the marital home.

Respondent has filed a petition u/s 13(1)(ia)(ib) of Hindu Marriage Act, 3955, against the Petitioner, in the Family Court at Bangalore. Said petition was registered as M.C 3397/2010. The Petitioner''s address shown in the cause title of the said petition is, Assistant Professor, Department of Forensic Medicine, Alva''s Ayurvedic Medical College, Moodbidri-574 227.

The Petitioner having entered appearance through her learned advocate, filed this petition seeking transfer of the case on the following grounds:

a) That she has been residing in Hubli since more than 3 years and at the address shown in the cause title since 01.06.2009 and is working as consulting ayurvedic physician at Deccan Ayurveda from 21.01.2008.

b) That she is residing at Hubli in view of her appointment in the Deccan Ayurveda as consulting ayurvedic physician and therefore it is difficult for her to attend the case at Bangalore, leaving behind the patients, as she is the sole consulting ayurvedic physician in the said hospital and that may a times the patients requiring immediate medical treatment keep coming to the hospital and her presence in the hospital is imperative.

c) That the distance between Hubli to Bangalore is 400 Kms and she will have to apply for leave 2 - 3 days for attending a hearing of the case at Bangalore, which will affect her job career in the hospital.

d) That she has been suffering from lower backache with dragging pain and is under continuous treatment for more than a year.

According to the Petitioner, she has been taking treatment under Dr. Sachin Revankar and she has been advised bed rest, physiotherapy and conservative management and hence, she is unable to travel to Bangalore, which will certainly aggravate her backache. She has stated that, due to the health problem, she is unable to attend the job at Alva''s Ayurvedic Medical College & Hospital at Moodbidri, where she was a Visiting Asst. Professor in the Department of Agada Tantra and applied for leave time and again due to her incapacity to undertake the travel.

The Respondent filed statement of objections, wherein he has denied the claim of the Petitioner, that on account of ill-health, she has availed leave from Alva''s Ayurvedic Medical College & Hospital and according to him, the documents produced with regard to availing of leave are forged and false since the summons of the case was served at the address given i.e., Alva''s Ayurvedic Medical College & Hospital at Moodbidri. According to him, the petition is motivated and the Petitioner is shopping the forum at her convenience and to harass him. He has stated that, his father is 64 years old and is suffering from liver cancer and is a diabetic patient and he being the youngest son, is taking care of his father since his elder brother is serving in the Indian Army and presently posted in the Assam State. According to him, his mother, who is more than 60 years old, is also suffering from illness known to her age. He has opposed this petition, since the same is based on job constraints and also on health grounds, which is not true.

The Petitioner filed a counter to the statement of objections and has enclosed the RPAD cover containing the notice of the case sent to her with address of Moodbidri, having been re-directed to Shimoga, where it was received. She has produced the voters list of Mudhol, Ward No. 17, which shows that, the parents of the Respondent are the residents of Mudhol.

Smt. Manjula N. Tejaswi, learned advocate appearing for the Petitioner, reiterated the case of the Petitioner stated in the petition and the counter and contended that, in the facts and circumstances of the case, the petition being meritorious, may be allowed.

Sri J.S. Halashetti, learned advocate appearing for the Respondent, reiterated the case of the Respondent as stated in the statement of objections filed to this petition and by relying upon the decisions in the cases of Smt. Nanda Kishori v. S.B. Shivaprakash AIR 1993 Kar 87 and Smt. M.V. Rekha Vs. Sri Sathya alias Suraj, , submitted that, the Petitioner is not entitled to the relief prayed in the petition.

I have perused the ease papers. Keeping in view the rival contentions, the point for consideration is:

Whether M.C 3397/2010 filed by the Respondent, pending before the family Court at Bangalore, is required to he withdrawn and transferred to the Family Court at Dharwad?

''The Petitioner is residing at Hubli. Hubli and Dharwad are twin cities. The travel time between the two cities is about 30 minutes. The employment of the Petitioner at Deccan Ayurveda is not disputed. Petitioner has produced medical certificates, discharge summary, prescription slips and also a certificate issued by Dr. Sachin Revankar which shows that, the Petitioner suffers from low backache, which has been diagnosed as acute disk lesion L4-5 and L5 S1 and that, she was treated conservatively. Doctor has certified that, Petitioner has signs and symptoms of disk pro-lapse and was advised bed rest, physiotherapy and conservative management for a period of three weeks from 30.04.2011 and review was directed thereafter. The certificates issued by Alva''s Ayurvedic Medical College & Hospital shows that, the Petitioner was on leave from 27.11.2010 to 29.01.2011 and again from 29.04.2011 on health grounds. The summons sent through RPAD by the Family Court, Bangalore to the Petitioner to her Moodbidri address was re-directed to Shimoga, where she received the summons and appeared before the Family Court. Bangalore.

In the case of Smt. NANDA KISHORI (supra), it was held as follows:

8...As such, whenever Courts are called upon to consider the plea of transfer in matrimonial matters Courts have to take into consideration the economic soundness of either of the parties, the social strata of the spouses and the behavioural pattern of their standard of life antecedent to marriage and subsequent thereon and after the snap of the knot which resulted in marriage, the circumstances of either of the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance of life.

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It is but natural for a party in such circumstances to make a plea to the courts of equity to transfer the proceeding to a place where they would be in a best position to defend their case and in the instant case, wife who has sought transfer of the matrimonial proceedings from Bangalore where she has No. moorings to a place wherein she is leading life of destitution with her aged parents could be characterised as either perverse, vindictive or based on No. materials.

In the case of Smt. M.V. REKHA (supra), it has been held as follows:

Generally, it is the wife''s convenience which must be looked at while considering transfer.

In this petition, it is unnecessary to examine the veracity of the allegations levelled by the parties against each other. Taking into consideration the totality of the facts and circumstances of the case, noticed supra, and in the interest of justice, I deem it appropriate to allow this petition. Bangalore to Dharwad is overnight journey either by road or by Train. Road is National Highway -4. There is an Express Train - Rani Chennamma Express, which leaves everyday at 9:15 p.m. and reaches Dharwad. around about 6:00 a.m. On return, the train leaves Dharwad around about 10:00 p.m. and reaches Bangalore early in the morning. The Respondent, who has the means, can travel to Dharwad, attend the case and return. He has not placed any material on record to show that he has to be with his father round the clock. Even otherwise, the Respondent being employed will be away from his parents, during the working hours. If the Respondent has any difficulty in availing leave to attend the case at Dharwad, he can seek posting of the case on Saturdays or any day convenient to him and the transferee Court to accommodate the Respondent and decide the case expeditiously, which would minimize the hardship, if any, to the Respondent. The Petitioner, a lady, cannot travel alone, may need somebody to escort her, which may not be readily forthcoming, since her parents are residing at Shimoga and she is supported by her near relatives at Hubli, who may or may not join her to undertake travel to Bangalore.

In the result, the petition is allowed.

M.C 3397/2010 pending before the III Addl. Principal judge, Family Court, Bangalore, is hereby withdrawn and transferred to the Family Court at Dharwad.

The learned Principal Judge, Family Court, Bangalore, to immediately transfer the records of M.C 3397/2010 to the Family Court at Dharwad, for trial and disposal.

The learned Judge, Family Court, Dharwad to keep in view the observations made supra and decide the case expeditiously and within a period of one year from the date of first appearance of the parties.