Smt. Bharathi Alias Achala H.K. - Petitioner @HASH M.S. Ashok Kumar

A.S. Bopanna, J. - The petitioner in W.P. No. 38877 of 2015 is the wife of the respondent therein. The petitioner in C.P. No. 40 of 2016 is the husband of the respondent therein. In the writ petition filed by the wife, she has sought transfer of the case in M.C. No. 192 of 2013 filed by the husband before the Family Court, Chickmagalur to the Family Court at Bangalore. In C.P. No. 50 of 2016 filed under Section 24 of the Code of Civil Procedure, 1908, the husband has sought for transfer of the case in M.C. No. 5129 of 2015 pending on the file of the Family Court, Bangalore to the Family Court at Chickmagalur.

Since in both these petitions, the subject-matter is the proceedings pending before the Court below and the prayer is with regard to transfer from one Court to another, the petitions are taken up together and disposed of by this common order.

Taking note of the array of the parties differently in these petitions, the parties are referred to as ''wife'' and ''husband'' wherever the context requires, for the purpose of convenience and clarity.

The petition in M.C. No. 192 of 2013 is filed by the husband under Section 13(l)(i-a) of the Hindu Marriage Act, 1955 seeking dissolution of marriage. The petition in M.C. No. 5129 of 2015 is filed by the wife under Section 9 of the Hindu Marriage Act, 1955 seeking Restitution of Conjugal Rights.

The wife is contending that as she is presently residing at Bangalore, it will not be possible for her to travel from Bangalore to Chickmagalur and defend the petition in M.C. No. 192 of 2013 and as such, the same be transferred to Bangalore, where it could be considered along with M.C. No. 5129 of 2015. The husband on the other hand is seeking transfer of M.C. No. 5129 of 2013 from Bangalore to Chickmagalur where M.C. No. 192 of 2013 is pending, as according to the husband, the wife is not in fact residing at Bangalore, but is a resident of Chickmagalur and that the petition filed by the petitioner-husband is the earlier petition and therefore the petition filed later should be transferred to Chickmagalur.

In the light of the rival contentions, I have perused the petition papers in the background of the arguments addressed by the learned Counsel for the parties. A perusal of the petition papers would disclose that in addition to the two petitions, which are referred to above, the wife had also initiated the proceedings under the Protection of Women from Domestic Violence Act, 2005 in Cri. Misc. No. 274 of 2012 which is no doubt disposed of by the order dated 12-3-2015 and the appeals filed against the said order are pending consideration. In that background what requires consideration is as to which of the petition should be transferred, when both the petitions have been sought for transfer depending on their convenience.

As already noticed, the petition filed by the husband seeking dissolution of marriage is no doubt a petition that was filed earlier. That apart, the learned Counsel for the husband is also raising a serious dispute with regard to the validity of the agreement relied on by the wife, to indicate that she is presently residing at Bangalore. While taking note of such aspect, what is also to be kept in view is that even if the agreement produced indicates that the premises taken on lease is by the brother of the wife, in a situation when there is a marital dispute between the husband and wife and if the wife is residing away from the husband, certainly, she would have to depend on any other member of her family and in that circumstance, if she is residing in Bangalore, in that circumstance such contention cannot be discarded.

That apart, though the learned Counsel for the husband placed reliance on the judgment of this Court in case of Smt. Sneha v. Sri Vinayak ILR 2013 Kar. 165, wherein it was held that the case, which was filed at a later point of time is to be transferred to the Court where the earlier case is pending, the said decision is made based on the factual background of the circumstances arising in that case, where there was only one case pending between the parties and in that circumstances, it was ordered thus. In any event, the Hon''ble Supreme Court in the case of Arti Rani alias Pinki Devi and Another v. Dharmendra Kumar Gupta (2008) 9 SCC 353 : 2008 AIR SCW 5805, dated 16th July, 2008, while deciding a Transfer petition has held that in the circumstances where a lady seeks transfer of the case based on the inconvenience, such request made is to be accepted.

In addition to the same what is also to be kept in view is that in the instant facts, when the wife had instituted the proceedings under the Protection of Women from Domestic Violence Act, 2005 at Bangalore, the husband had appeared in the said case and had participated in the proceedings till its disposal in the year 2015. If that be the position, in the circumstances, where the wife has instituted a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights and the same is pending at Bangalore, even though the petition filed by the husband under Section 13 of the Hindu Marriage Act, is the earlier petition, considering that in any event, there should not be conflict of decisions in the said matters and in that light, the convenience of the parties is kept in view and also taking note of the fact that at the earlier instance, the husband had defended the proceedings at Bangalore, which was initiated by the wife and when such proceedings had been initiated as far back in the year 2012, I am not in a position to accept the contention that the wife is not residing in Bangalore. Therefore, taking into consideration all these aspects of the matter, I am of the opinion that the petition in M.C. No. 192 of 2013 pending on the file of the Family Court, Chickmagalur is to be ordered to be withdrawn and transferred to the Family Court at Bangalore to be considered along with M.C. No. 5129 of 2015.

In that view, a direction is issued to withdraw M.C. No. 192 of 2013 from the file of the Family Court, Chickmagalur and transfer the same to the Family Court at Bangalore to be considered along with M.C. No. 5129 of 2015. The Transferee Court shall, on receipt of the papers, issue notice to the parties and proceed with the matter in accordance with law.

Petitions are accordingly disposed of.