Sujatha and Others vs Mallanagouda

B. Veerappa, J.—The wife and daughters have filed the above civil petition under Section 24 of Civil Procedure Code, against the respondent/husband and father of daughters, praying to transfer M.C. No. 21/2014 pending on the file of the Senior Civil Judge and JMFC, Hirekerur, to the Family Court, Dharwad.

It is the case of the petitioners that the 1st petitioner and respondent were married on 20.4.2000 as per Hindu customs and rituals prevailing in their community and out of their wedlock two daughters, namely petitioners 2 and 3 were born and initially things went cordial. Thereafter, the respondent and his family members started ill-treating the 1st petitioner to give permission to sell the land of the petitioner which was given by her father and to bring dowry. The elders on both sides advised respondent and his family members not to harass the petitioners. However, even after the same they did not stop harassing the petitioners. When the state of affairs worsened and life became intolerable for the petitioners when the respondent knowing fully well that he is already married the 1st petitioner and has two children consumed second marriage. When the same was questioned by the petitioners, the respondent drove the petitioners out of the matrimonial home. The petitioners left with alternative and unable to maintain themselves, filed petition in Crl. Misc. 4/2014 on the file of the Principal Judge Family Court, Dharwad, under Section 125 of the Code of Criminal Procedure for grant of maintenance and even though the Family Court granted interim maintenance of Rs. 7,000/- per month, the respondent has not paid single pai to the petitioners. Thereafter the respondent filed M.C. 21/2014 under section 9 of Hindu Marriage Act on the file of the learned Senior Civil Judge and JMFC, Hirekerur for restitution of conjugal rights. Therefore, the petitioners contend that the 1st petitioner is unable to bear expenses and to attend the matter at Hirekerur, with two minor children. It is further contended that the petitioner is staying along with her daughters at her father''s house and her father is also an aged person and 1st petitioner is also not much aware about the proceedings.

Notice issued by this Court to the respondent though served, has remained unrepresented..

I have heard the learned Counsel for the petitioners Sri Srinivasa B. Naik who is appearing for Sri K.L. Patil, who has reiterated averments made in the petition and contended that inspite of interim maintenance granted by the Family Court, the respondent has not paid any single pie and he also contracted a 2nd marriage during the subsistence of 1st marriage and thrown out the petitioners from the matrimonial house. The petitioners having been deserted by respondent without any means to eke out their livelihood, the 1st petitioner cannot travel to attend the case filed by her husband at Hirekerur from Dharwad. Accordingly, he sought to allow the civil petition.

I have considered the arguments advanced by the learned Counsel for the petitioner and perused the entire records.

It is an admitted fact that the marriage between the respondent and 1st petitioner was solemnized on 20.04.2000 and out of their wedlock petitioners 2 and 3 were born and they are minors aged about 13 and 10 years respectively as on the date of the filing of the petition. The petitioners specifically contended that in order to get more dowry and in order to get the signature of the 1st petitioner to permit the respondent to sell the land given by her father in favour of 1st petitioner, the respondent and his parents are harassing the petitioners. The respondent has contracted 2nd marriage knowing fully well that he is already married and when it was questioned by the petitioners all the petitioners were thrown out from the house. Inspite interim maintenance awarded by the Family court, not a single pie has been paid and the 1st petitioner along with her daughters is living in her father''s house at Dharwad.

The distance between Hirekerur to Dharwad is about 140 Kms. The 1st petitioner cannot attend the case at Hirekerur and she cannot travel alone and she has unable to bear the traveling and litigation expenses since the respondent has not even paid a single pie as ordered by the Family court. On the contrary, the respondent is capable of attending the court proceedings at Dharwad and he is also capable to bear the expenses since the respondent is cultivating the land given by petitioner''s father and income derived from the cultivation is utilized by the respondent himself. Further the petitioner apprehends risk to her life since the respondent has threatened her with dire consequences if she attend the court at Hirekerur. The said allegations is not at all denied by respondent since respondent is served and unrepresented.

This Court while considering the petition under Section 24 of Code of Civil Procedure, in the case of Seema alias Preeti Vs. Pramod Chandrakant Vernekar, , relying upon the dictum of the Apex Court in the case of Sumita Singh Vs. Kumar Sanjay and Another, , has held that while considering the application for transfer of matrimonial proceedings, the convenience of the wife has to be looked into. Taking into consideration the age of the 1st petitioner who is aged 32 years, petitioners 2 and 3 who are aged 10 and 13 years respectively, the financial condition of the petitioners and in view of the law declared by the Hon''ble Supreme Court cited supra, in my considered opinion, this is a fit case to transfer M.C. No. 21/2014 pending on the file of the Senior Civil Judge and JMFC, Hirekerur to the Family Court, Dharwad for further adjudication.

Accordingly, the Civil Petition is allowed. The matrimonial case in M.C. No. 21/2014 pending on the file of the Senior Civil Judge and JMFC, Hirekerur, is ordered to transfer to the Court of Family Court, Dharwad, for adjudication of the matter between the parties on merits and in accordance with law.