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2002 DIGILAW 1073 (AP)

Mazhar Sultana v. Abdul Majeed

2002-09-05

GOPALA KRISHNA TAMADA

body2002
GOPALA KRISHNA TAMADA, J. ( 1 ) IN this petition filed under Section 24 of the Code of Civil Procedure, the petitioner, who is the respondent in O. P. No. 23 of 2002 on the file of the Family Court, City Civil court, Hyderabad, seeks transfer of the said o. P. to the District Court, Nalgonda. ( 2 ) THE averments in the petition are that the petitioner herein hails from an orthodox muslim family and she is a pardanashin lady. The respondent herein is her husband and their marriage was solemnized on 30-5-1991 at Nalgonda. Ever since the date of marriage, she has been subjected to mental and physical torture for additional dowry and the respondent is addicted to bad vices such as alcohol and woman. In spite of the said mental and physical torture, she led the marital life with the respondent and ultimately the respondent herein pronounced talaq on 14-6-1998. During their wedlock, the petitioner gave birth to five children. After talaq, herself and her children are living with her parents and brother, who is a practising advocate at nalgonda. Her parents and her brother are taking care of her and her children s education at Nalgonda. ( 3 ) THE respondent herein married another lady, who is a divorcee with children born on account of her earlier marriage and she begot two children through the respondent herein. Thus, he is maintaining five children already. As the petitioner herein is not in a position to maintain herself and her children, she was constrained to file M. C. No. 8 of 1999 on the file of the Judicial I Class Magistrate, Special mobile Court, Nalgonda, and the learned magistrate granted maintenance to the children. ( 4 ) IT is further alleged that although the respondent has divorced the petitioner, to harass the petitioner, he filed the above O. P. seeking protection of the children under section 25 of the Guardian and Wards Act, on account of which the petitioner is forced to travel from Nalgonda to Hyderabad to attend to the case at Family Court, hyderabad. As the petitioner being a pardanashin lady hailing from an orthodox muslim family and as she is not in a position to go alone to Hyderabad, every time she is requiring some elderly person to accompany her. As the petitioner being a pardanashin lady hailing from an orthodox muslim family and as she is not in a position to go alone to Hyderabad, every time she is requiring some elderly person to accompany her. She further stated that the above O. P. is filed only to avoid payment of the maintenance to the children and to harass her. Under the circumstances, she prayed this Court to order transfer of the above O. P. from Family Court, Hyderabad, to the district Court at Nalgonda. ( 5 ) LEARNED Counsel for the petitioner (wife), Mr. M. L. Ali, reiterated the contentions raised in this transfer petition and submitted that the custody of the children shall always be with the mother and that apart, the petitioner who is a pardanashin lady and not being in a position to maintain herself has filed maintenance case seeking maintenance and the learned magistrate had granted maintenance. With the said maintenance amount and with the assistance rendered by her parents and her brother, who is a practising advocate at nalgonda, she is leading comfortable life with her children at Nalgonda. According to the learned counsel, the respondent is having two children through his second wife and apart from them he is also maintaining the three children, born to his second wife during her earlier wedlock, and as the respondent is already over-burdened, he will not be in a position to maintain the children born to the petitioner herein also. He, therefore, submits that the present O. P. is filed only to harass the petitioner. ( 6 ) ON the contrary, Sri Mohammed gulam Hussain, learned counsel for the respondent (husband)strenuously opposed the transfer petition stating that it is true that the marriage with the petitioner had taken place on 30-5-1991 and the petitioner gave birth to five children, of whom four are girls. The respondent is employed at Hyderabad. The petitioner is a quarrelsome lady and she always insisted upon the respondent for leaving the job and to go over to Nalgonda to stay along with her parents. As he was not in agreement with her, she left his company on her own in the year 1998 and subsequently he was rather forced to give talaq to the petitioner on 14-6-1998, which is a revocable divorce and there is possibility of their re-union. As he was not in agreement with her, she left his company on her own in the year 1998 and subsequently he was rather forced to give talaq to the petitioner on 14-6-1998, which is a revocable divorce and there is possibility of their re-union. According to him, the petitioner is a very adamant lady and she filed false case against the respondent and his father, sister and brother-in-law under section 498-A of the I. P. C. and the same ended in acquittal. On account of her adamant attitude, the children are getting spoiled and if the children are allowed to continue in the company of the petitioner, they will become illiterates. As the father of the children, he has a duty to look after the welfare of the children and as he is the natural guardian under the Muslim personal law and also under the provisions of Section 25 of the Guardian and Wards act, he is entitled to the custody of the children and accordingly he filed O. P. in the court below which is having jurisdiction and the same cannot be transferred to the court at Nalgonda, the place where the petitioner is residing. Learned Counsel for the respondent has further drawn my attention to the judgments in Indian Overseas bank Madras v. Chemical Construction company and others and Dr. Sini v. B. Suresh jyothi. ( 7 ) IN this petition filed under Section 24 of the Code of Civil Procedure, it is not necessary for this Court to go into the merits or demerits of the O. P. filed by the respondent herein in the Court below under the provisions of Guardian and Wards Act or the question whether the respondent is entitled for the custody of the minor children, as the scope of this petition is restricted only to find out whether the O. P. filed by the respondent (husband)has to be transferred to the District Court at Nalgonda as sought for by the petitioner herein or to be retained in the Family Court, Hyderabad itself. ( 8 ) SECTION 24 of the Code of Civil procedure confers general power of transfer and withdrawal of cases on the District court as well as the High Court. ( 8 ) SECTION 24 of the Code of Civil procedure confers general power of transfer and withdrawal of cases on the District court as well as the High Court. According to the said provision, on an application by any of the parties and after notice to the parties and hearing them, the Court may at any stage withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and transfer the same for trial or disposal in accordance with law to any Court subordinate to it and competent to try or dispose of the same. Thus, Sec. 24 confers wide powers of transfer of cases and there are no restrictions in the way of the high Court exercising the power of transfer under Section 24. But, however, the same has to be used very sparingly and only in deserving cases, particularly when it relates to matrimonial matters. ( 9 ) THOUGH the O. P. filed by the respondent herein is a petition under Sec. 25 of the Guardian and Wards Act for custody of the minor children, it is, in fact, a lis between the husband and wife. As such, this court has to take into consideration the economic soundness of both the parties, the social strata of the spouses and the behavioral 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. Thus, in these cases where the husband is gainfully employed and the wife is leading a life of destitution with her aged parents and is not in a financial position to make trips to the place where the case filed by the husband is pending, I am of the considered opinion that it is the wife s convenience that has to be taken into consideration and it is desirable to transfer the case to the place where the wife is residing. This view of mine finds support from latest judgments of the apex Court in rachna Kanodia v. Anuk Kanodia and Sumita singh v. Kumar Sanjay, wherein their lordships held that "it is the wife s convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute. This view of mine finds support from latest judgments of the apex Court in rachna Kanodia v. Anuk Kanodia and Sumita singh v. Kumar Sanjay, wherein their lordships held that "it is the wife s convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute. " ( 10 ) COMING to the judgments relied upon by the learned counsel for the respondent, in indian Oversees Bank (supra), the apex court while dealing with the scope of section 24 laid down the law on the point as under:"as compared with Section 24, the power of transfer of civil proceeding to another Court, conferred under the new Section 25 on the Supreme Court, is far wider. And, so is the amplitude of the expression, "expedient in the interest of justice" which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another Court, is a question which depends on the circumstances of the particular case. Although the exercise of this discretionary power cannot be imprisoned within the strait-jacket of any cast-iron formula uniformly applicable to all situations, yet, certain broad propositions as to what may constitute a ground for transfer can be deduced from judicial decisions. One of them is that where two suits raising common questions of facts and laws between parties common to both the suits, are pending in two different courts, it is generally in the interest of justice to transfer one of those suits to the other forum to be tried by the same court, with consequent avoidance of multiplicity in the trial of the same issues and the risk of conflicting decisions thereon. The instant case falls squarely within this category. " (Paras 17 and 18) the other decision relied upon by the learned counsel reported in Dr. Sini (supra) arose out of a petition filed by the wife under Section 24 of the C. P. C. seeking transfer of the proceedings pending before a Family Court. In that case, the apprehension of the wife is that the presiding Officer was making endeavours to settle the matter and persuading her to stay with her husband and that her husband would manage to get favourable orders from the Presiding Officer. In that case, the apprehension of the wife is that the presiding Officer was making endeavours to settle the matter and persuading her to stay with her husband and that her husband would manage to get favourable orders from the Presiding Officer. In the facts and circumstances of the case, the Kerala High court held that such an apprehension of the wife is unfounded and mere apprehension of adverse order is not sufficient to transfer a case from one Court to another. The Kerala high Court further held that such efforts are part of the duty of the Courts and cannot be interpreted as illegal or coercive step on the part of the presiding officer. However, in my considered opinion, neither the principle laid down by the apex Court in Indian oversees Bank (supra) nor the ruling of the kerala High Court in Dr. Sini (supra) lend any support to the contention raised in this case by the learned counsel for the respondent, as those two decisions are not relevant to the point raised by him. ( 11 ) FOR the foregoing reasons, I am of the opinion that the facts and circumstances of the case on hand which are narrated hereinabove would sufficiently indicate that o. P. No. 23 of 2002 filed by the respondent (husband) under Section 25 of the Guardian and Wards Act requires to be transferred to the Court at Nalgonda, the place where the petitioner (wife) is residing. ( 12 ) IN the result, the petition is allowed and O. P. No. 23 of 2002 is withdrawn from the file of the Court of Family Court, hyderabad, and transferred to the District court, Nalgonda, for disposal in accordance with law. No costs. ( 13 ) AS this is a lis between husband and wife, the Court below is directed to dispose of the O. Ps. as expeditiously as possible.