Smt. Swathi S.M. vs Sharath S. Gogi

B.S. Patil, J.—This civil petition is filed by the petitioner praying for withdrawal of M.C. No. 1763/2013 from the file of VI Additional Principal Judge, Family Court, Bangalore, and to transfer the same to the Family Court at Shimoga. Petitioner is the wife of the respondent. Their marriage was solemnized on 29-03-2012 in Shimoga. Differences having arisen between them, petitioner is now staying at Shimoga with her parents. She has a child born to her in the wedlock on 03-04-2013.

The respondent-husband has filed a petition seeking dissolution of the marriage on the file of the Family Court at Bangalore in M.C. No. 1763/2013. The Family Court has granted ad-interim ex-parte order of temporary injunction against the petitioner restraining her from entering the matrimonial home until further orders as is evident from Annexure-C. The ex-parte order of temporary injunction granted by the Family Court is based on the documents enclosed to the interlocutory applications mainly in the nature of SMS which contain filthy language and hold out threat against the husband of assaulting him with foot wear and broom stick. The said ex-parte order is being extended from time to time.

It is contended by the petitioner in this petition that she is unable to appear before the Court at Bangalore, because she has to look after her small child. Though the parties were referred to Bangalore Mediation Centre at Bangalore, the mediation has failed. Petitioner has pleaded several difficulties to come over to Bangalore to contest the divorce petition filed against her contending inter alia that her father being a retired Government servant has been suffering from illness and mother is working as Assistant Manager in Karnataka Soaps and Detergents Ltd., and her only brother is working at Bangalore and thus there is nobody else in her family who can accompany her to come to Bangalore. Thus, it is contended that it would be difficult for her to travel the distance of almost 280 kilometers from Shimoga to Bangalore and contest the case each time the matter is listed here. It is further contended that a criminal case is instituted by her against her husband-respondent herein which is pending on the file of the JMFC-II, Shimoga and the respondent is required to appear in the said Court. Therefore, if the matrimonial case is transferred to the Family Court, Shimoga, it will not cause any hardship to the husband.

Sri. S.V. Prakash, learned counsel for the petitioner reiterating the averments made in the petition contends that in order to provide fair opportunity to the wife to defend herself against the allegations made in the petition filed for divorce at Bangalore by her husband, the case has to be transferred to Shimoga where the wife is currently residing. He submits that since the wife-petitioner has got a small child to look after, she cannot be forced to come over to Bangalore each time when the case is listed at Bangalore, as it will cause serious hardship and prejudice not only to the petitioner, but also to the child. He has placed reliance on the judgment of the Apex Court reported in Reena Mehra Vs. Rohit Rai Mehra and Another, , and also the orders passed by this Court in C.P. No. 129/2013 and C.P. No. 143/2008 disposed of on 23-08-2013 & 11-07-2012 respectively.

Learned Senior Counsel appearing for the respondent took me through the statement of objections filed by the respondent-husband and the documents enclosed therein. His main contention is that serious differences arose between the petitioner and the respondent mainly because of the behaviour of the petitioner as she insisted that she had to go to her parent''s house and as she tried to impose her views and became angry resorting to hurling abuses on the respondent. He took me through some of the SMS (messages) enclosed to the statement of objections to high light the amount of anger and acrimony exhibited by her and the consequent incompatibility between them. In fact, at one stage, this Court also made some attempts to help the young couple to sort out their differences by suggesting them to reach negotiated settlement by calling them to the chambers and by holding a joint meeting in the presence of their Advocates, but the same was in vain.

Sri. Udaya Holla, learned Senior counsel points out by filing a memo enclosing the doctor''s certificate issued by M.S. Ramaiah Institute of Technology on 11-12-2013 that the respondent-husband who is aged about 33 years has been examined by a Senior Professor of the Department of Neurology and he is found to be suffering from limitation of neck movements with weakness left deltoid muscle. In fact, he was subjected to MRI which revealed diffuse of left para central and foraminal disc herniation at C4-5 with impression of C5 nerve root. The certificate produced reveals that the respondent has been advised to wear cervical collar, avoid sudden jerky movements, travel and lifting heavy objects. It is also contended by referring to the statement of objections filed, that the petitioner has falsely alleged that the respondent and his family members have demanded dowry and harassed the petitioner. It is alleged by the wife that on 19-05-2013, the respondent and his brother had gone to the petitioner''s place at Shimoga and threatened, abused the petitioner and her parents, apart from assaulting her and demanding dowry of Rs. 10 lakhs. The respondent contends that indeed on the said date he was in Raichur. On these allegations, a criminal case is registered in this regard at Shimoga.

It is contended by the respondent that there is threat to his life and limb and that he would not be in a position to conduct his case effectively in Shimoga. In view of the threats held out by the petitioner and the criminal case lodged against him, the respondent being a practicing Advocate at Bangalore, it is urged that if the case is transferred to Shimoga it will adversely affect his professional work at Bangalore.

It is also further urged that the petitioner-wife has a brother who is an Engineer working at Bangalore. Therefore, she would not be having any difficulty in defending the case at Bangalore as she can seek assistance from her brother whenever she is required to attend the proceedings in the Family Court at Bangalore.

Sri Uday Holla, learned Senior counsel has placed reliance on the following judgments:

Mrs. Geetha Vs. T. Seeralan, .

Jaiwanti Gahija (Smt.) Vs. Ashok Kumar Sharma, .

Smt. Shiva Vs. Sumit Ranjan, .

On the basis of the respective contentions, I have carefully examined the matter. It is not in dispute that the petitioner has a young child to be looked after. It will be very difficult for her to undertake journey to come over to Bangalore from Shimoga each time the case is posted here leaving behind the small child or even by carrying the small child. To this extent, learned counsel for the petitioner is right and justified in bringing the difficulty involved for the petitioner to contest the matrimonial case at Bangalore.

In the facts of this case, the materials placed on record along with the statement of objections make it very clear that the relationship between the two parties is strained to such an extent that the petitioner has filed criminal complaint at Shimoga and the respondent is apprehending further consequences including physical harm in case he is made to go over to Shimoga to prosecute the case filed by him seeking divorce by transferring the same. Although at this stage, this Court will not look into the documents made available and record any findings regarding the nature of threat held out and the nature of danger perceived by the respondent from the petitioner, suffice to observe that the apprehension of the respondent is not unfounded. Therefore, I am of the view that in order to ensure fair and proper conduct of trial of the case filed by the respondent in M.C. No. 1763/2013, the matter has to be transferred to a place which will be convenient to both the parties other than Bangalore and Shimoga but located closer to Shimoga.

In my view, if the case is transferred to Tarikere which lies on the highway and situated at a distance of about 80 kilometers from Shimoga, it will not cause prejudice and hardship to the petitioner to attend the Court and defend herself there. Though the distance from Bangalore to Tarikere is about 220 kilometers and although the respondent contends that the road journey is hazardous for him because of the ailment that he suffers, having regard to the fact that the place has been connected by train, I am of the view that the respondent will not be subjected to serious hardship, if the case is transferred to Tarikere. It is also necessary to observe here that the petitioner and respondent as well can seek exemption from personal appearance in the Court at Tarikere as and when they find it difficult to be present personally before the Court at Tarikere. It is also essential to direct the Court at Tarikere to dispose of this case expeditiously at any rate within a time frame of eight months from the date of receipt of a copy of this order, keeping in mind the nature of the dispute and situation of the parties. In the light of the view that I have taken, it is not necessary to consider the effect of the judgments relied on by both the parties as they are of no assistance now. Hence, I pass the following:

ORDER

The proceedings pending on the file of the VI Additional Family Court at Bangalore in M.C. No. 1763/2013 is withdrawn and transferred to the Court of Civil Judge, Senior Division, Tarikere. The Court at Tarikere is directed to make endeavors to dispose of the case expeditiously at any rate within a period of eight months from the date of receipt of a copy of this order.

Liberty is reserved to both the parties to seek exemption from personally appearing, in case they face any genuine difficulty in appearing before the Court, subject, of course, to the discretion to be exercised by the Court below in this regard.

Civil Petition is accordingly disposed of.