Someshwar vs Neha

B. Veerappa, J.—The husband/petitioner filed the above petition under Section 24 of the Civil Procedure Code, praying to transfer Crl. Misc. 116/2014 pending before the Family Court, Bijapur to Family Court, Dharwad, wherein M.C. No. 179/2013 is pending, contending that marriage of the petitioner and respondent was solemnized on 29.06.2012 at Shn Guruganayogi Panchakshan Kalyanamantap, Basavanagar, Halyal Road, Dharwad, and the respondent was residing with the petitioner. In the residence of the petitioner his old aged parents and petitioner were residing and in the respondent was very much attached to her parents and it was difficult for her to adjust with the petitioner and his family members and therefore, she used to visit her parents house frequently and used to stay there for months together. It is the contention of the petitioner, that the respondent instead of staying and helping the petitioner and looking after his family, has shown her interest in helping her parents and residing with them and as the respondent was insisting the petitioner to find teacher''s job at Dharwad, the petitioner filed an application of respondent before KE Board High School on 27.2.2013 and made all efforts to keep the respondent happy but the respondent never tried to adjust with the petitioner and lived with him. That on 13.3.2013, the respondent without informing the petitioner went to Bijapur with her parents. After several request, the respondent put certain conditions and returned to Dharwad and after coming to Dharwad she revealed the fact that she was working at Bijapur and that she will stay in her parents house and the petitioner should visit her once in a week to Bijapur. The petitioner made all efforts to bring back the respondent to his house and keep the respondent happy. But the respondent never cared the advise of petitioner and his parents. The petitioner issued a legal notice, which the respondent replied through her Counsel and asked for maintenance of Rs. 15,000/- per month. Therefore, the petitioner filed M.C. No. 179/2013 before the Family Court, Dharwad, under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and the respondent filed objections. The respondent also filed Crl. Misc. No. 116/2014 under Section 125 of Criminal Procedure Code claiming maintenance of Rs. 15,000/- per month before the Family Court, Bijapur.

The petitioner contends, that he is running a small single handed medical shop at Dharwad and residing with his age old parents and it is not possible for him to travel to Bijapur every now and then leaving all his work and age old parents to attend the case at Bijapur. Therefore, he sought for transfer the maintenance petition filed by respondent to Dharwad.

The respondent wife filed Statement of Objections and admitted pendency of both cases and denied other allegations made by the petitioner. She also contended that father of respondent is aged 65 years who is retired person and the mother of the respondent is also aged and recently she has been operated by removing uterus and discharged on 25.3.2014 from the hospital and except the respondent there is no one to look after her mother and father. It is also stated that it takes almost seven hours journey to the respondent to travel from Bijapur to Dharwad and there is no one in the family to accompany the respondent to come over to Dharwad. Moreover, the respondent is residing at teachers'' colony at Bijapur which takes 2 1/2 hours journey for the respondents to travel from bus-stand to her home, etc. Therefore, she prayed for dismissal of the petition.

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

Smt. Padmapnya S. Jadhav, learned advocate for petitioner, contended that the petitioner is residing at Dharwad along with his aged parents and is running a small medical shop and it is not possible for him to travel to Bijapur every now and then leaving all his work and old age parents. Therefore, she sought for transfer of the petition filed by the wife from Bijapur to Dharwad by allowing this civil petition.

Sri. Shnharsh A. Neelopant, learned advocate for respondent has contended that, since the respondent is taking care of her old age parents at Bijapur and she being a woman alone cannot travel from Bijapur to Dharwad, which is almost a seven hours journey, every now and then to attend the case. Therefore, he sought to dismiss the civil petition.

I have given my thoughtful consideration to the arguments advanced by both parties and also to the petition averments and statement of objections.

It is not in dispute that the marriage of the petitioner and respondent was solemnized on 29.06.2012. It is also not in dispute that the respondent-wife filed Crl. Misc. 116/2014 for maintenance under Section 125 of Code of Criminal Procedure, before the Family Court, Bijapur and the petitioner has also filed a petition in M.C. No. 179/2013 under Section 9 of the Hindu Marriage Act, before the Family Court, Dharwad, for restitution of conjugal rights. The respondent-wife appeared and filed her objections.

Section 24 of the Code of Civil Procedure deals with the general power of transfer and withdrawal. Section 24(1)(a) of Code of Civil Procedure dealt with transfer of any suit, appeal or other proceeding pending before Court for trial or disposal to any Court subordinate to it and competent to try or dispose of the same and the said power should be exercised to transfer the case from one place to other place taking into consideration the pleadings and documents produced. In the present case, the petitioner except stating that he is running a small medical shop at Dharwad and he has to look after his aged parents, no other material is produced before the Court to prove that he is unable to travel from Dharwad to Bijapur to attend the case filed by the respondent under the provisions of Section 125 of Cr.P.C. claiming maintenance at Family Court, Bijapur. The distance between Bijapur and Dharwad is more than 200 Kms and the respondent being a lady aged about 32 years, she cannot alone travel such a long distance which is about seven hours journey and because of her financial difficulties she is not in a position to prosecute the litigation at Dharwad.

Taking into consideration the age of the respondent-wife and the avocation of the petitioner-husband and also in view of the dictum of the Hon''ble Supreme Court in the case of Ms. Shakuntala Modi Vs. Om Prakash Bharuka, AIR 1991 SC 1104 : (1991) 2 DMC 72 : (1992) 1 JT 53(1) : (1991) 1 SCALE 667 : (1991) 2 SCC 706 : (1991) 2 UJ 92 , it is not a fit case to exercise power under Section 24 of Code of Civil Procedure and transfer the case from the Family Court, Bijapur, to the Family Court at Dharwad.

Accordingly, the civil petition is dismissed.