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2003 DIGILAW 400 (AP)

Basani Sri Lakshmi Latha v. Basani Tirumala Rama Rao

2003-03-11

P.S.NARAYANA

body2003
( 1 ) HEARD Sri Kuncha Maheswar Rao and sri Bhaskar Rao Bandarupalli. ( 2 ) THE petitioner-wife filed the present transfer C. M. P. praying for transfer of o. P. No. 82/2001 on the file of Senior Civil judge, Markapur, Prakasam District to the court of Senior Civil Judge, Nandyal, kurnool District. ( 3 ) SRI Maheswar Rao, the learned counsel representing the petitioner-wife had taken me through the allegations made in the affidavit filed in support of the transfer C. M. P. and had submitted that the convenience of the wife may have to be taken into consideration while dealing with a case of transfer of matrimonial proceeding. The learned counsel further submitted that the tender male child is under the care and custody of the petitioner-wife and it is very difficult for her to attend the Court at Markapur. The learned counsel also pointed out that the petitioner has no relatives at Markapur and apart from it for every adjournment, she may have to request her father who has to apply for leave or get permission to accompany her to attend the Court at markapur. The learned counsel also pointed out that the mother-in-law is ex-Councillor of Markapur Municipality and they are powerful and influential people creating some problem and she apprehends danger also to her life at Markapur town. The learned counsel also submitted that though it was not specifically pleaded it is not in dispute that the wife already filed M. C. No. 25/2002 on the file of Judicial First class Magistrate, Nandyal as against the respondent-husband which is pending disposal and the respondent-husband is attending the said Court at Nandyal. The learned counsel also had placed reliance on mazhar Sultana v. Mohd. Abdul Majeed and rachna Kanodia v. Anuk Kanodia, ( 4 ) PER contra Sri Bhaskar Rao bandarupalli had taken me through the allegations made in the counter-affidavit. The learned counsel also had drawn my attention that it may be true that the mother of the respondent-husband was elected as councillor of Markapur Municipality at some point of time, but absolutely such allegation has no relevance for the purpose of deciding the Transfer C. M. P. and those allegations are coined only for the purpose of getting the matter transferred to the court of her choice to suit her convenience. The learned counsel also had pointed out that the marriage was solemnized at markapur only and Markapur Court alone is having jurisdiction to entertain the matrimonial O. P. and both these spouses had lived only at Markapur till desertion for a span of about 1 years and hence there is no justification in ordering transfer as prayed for by the petitioner-wife. The counsel also submitted that when the respondent-husband went to Nandyal on 24-9-2001 and requested his wife, the petitioner in the Transfer, C. M. P. and her parents to come over to Markapur, the petitioner refused and the parents and brothers and friends of her brothers beat him indiscriminately and in this view of the matter also the respondent-husband apprehends danger. The counsel also had placed strong reliance on Aduru Sridevi Alias parvathi v. Aduru Ganesh. ( 5 ) HEARD both the counsel. ( 6 ) THE wife filed the Transfer C. M. P. praying for transfer of O. P. No. 82/2001 on the file of Senior Civil Judge, Markapur, prakasam District to the Court of Senior civil Judge, Nandyal, Kurnool District. It is pleaded in the Transfer C. M. P. that the marriage of the parties was solemnized on 4-3-1999 at Markapur in accordance with hindu custom and tradition and due to the said wedlock, a male child was born on 20-12-1999. It is also stated that at the time of marriage as per the demands made by the respondent, her parents were forced to pay Rs. 1 lakh cash towards dowry to the respondent and again her parents had given 15 tulas of gold ornaments to the respondent. It is further stated that suppressing all these facts, the respondent- husband filed O. P. NO. 82/2001 on the file of senior Civil Judge, Markapur praying for the relief of divorce and the petitioner had gone to Markapur and engaged an advocate to prosecute the case. It is also placed that the petitioner has to look after the tender male child in her care and custody and at present she has been residing at her parents house at Nandyal which is at long distance from Markapur and there is no convenient bus facility available and it is very difficult to travel such a long distance along with her minor child for attending the Court and also attending the office of her counsel at markapur. It is also stated that she has no relatives at Markapur and as such they will be forced to stay at hotels by paying higher rents. It is further stated that her parents are. old aged parents having their own problems, both physical and financial and they have two daughters and four sons and all the sons are studying and depending upon the income of the father only. The petitioner further stated that she had studied upto VII class only and for every adjournment she may have to request her father who is forced to apply for leave or for permission to accompany her to attend the court at Markapur. Apart from this, her mother-in-law was an ex-Councillor of markapur Municipality, and the other relatives are very powerful and influential and they are creating certain problems to her and she apprehends danger to her life at markapur town. ( 7 ) THE husband had filed a counter- affidavit substantially denying all the allegations. It is specifically pleaded that markapur Court alone is having jurisdiction since the marriage was solemnized at markapur and they lived together also at markapur till the date of desertion. The other allegation that as ex-Councillor of markapur Municipality his mother is influential and there is threat to the petitioner-wife had been specifically denied. A specific incident dated 24-9-2001 also had been narrated and the respondent- husband also apprehends danger if he directed to attend the Court at Nandyal. ( 8 ) IT is not in dispute that the parties to the litigation are blessed with male child and the tender child is in the custody of the petitioner-wife. Though it was not pleaded by the petitioner-wife it is also not in dispute between the parties that another proceeding M. C. No. 25/2002 was filed under Section 125 Cr. P. C. as against the respondent-husband pending on the file of judicial First Class Magistrate, Nandyal. The truth or otherwise of the allegations made relating to the payment of dowry or gold etc. , are all aspects which need not be gone into at this stage. P. C. as against the respondent-husband pending on the file of judicial First Class Magistrate, Nandyal. The truth or otherwise of the allegations made relating to the payment of dowry or gold etc. , are all aspects which need not be gone into at this stage. The only question that has to be decided is in the facts and circumstances of the case whether the petitioner-wife is entitled to the relief of transfer prayed for in the present Transfer c. M. P. ( 9 ) IT is a case where the wife had made certain allegations apprehending threat to her life if she goes over to Markapur and likewise the husband equally making certain allegations relating to threat to his life in the event of his going over to nandyal to attend the Court in the event of the Transfer C. M. P. being allowed. In view of the fact that M. C. No. 25/2002 is pending on the file of Judicial First Class Magistrate, nandyal and the husband is attending the said Court especially in the absence of any other material to substantiate the contention relating to the incident dated 24-9-2001, I am not inclined to accept the allegation made by the respondent-husband relating to the threat to his life in the event of his going over to Nandyal to attend the Court. No doubt strong reliance was placed on the decision referred (3 supra) which is definitely distinguishable on facts. Unless there are other compelling reasons, settled legal position is that in matrimonial proceeding while deciding a Transfer c. M. P. , the predominant consideration is the convenience of the wife. There cannot be any two views relating to this aspect, especially in the light of the view expressed by the Apex Court in the decision referred (2 supra ). Be that as it may, even if the other aspects are taken into consideration, including the fact that the tender male child is in the care and custody of the petitioner- wife, it is just and reasonable to order the transfer C. M. P. as prayed for by the petitioner-wife. ( 10 ) HENCE, O. P. No. 82/2001 on the file of senior Civil Judge, Markapur, Prakasam district is hereby withdrawn and transferred to the Court of Senior Civil judge, Nandyal, Kurnool District to be decided in accordance with law. The transfer Civil Miscellaneous Petition is ordered accordingly. ( 10 ) HENCE, O. P. No. 82/2001 on the file of senior Civil Judge, Markapur, Prakasam district is hereby withdrawn and transferred to the Court of Senior Civil judge, Nandyal, Kurnool District to be decided in accordance with law. The transfer Civil Miscellaneous Petition is ordered accordingly. No costs.