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2003 DIGILAW 543 (AP)

Rama Murthy v. Ch. Rajyalakshmi

2003-04-07

P.S.NARAYANA

body2003
SRIRAMA MURTHY, J. ( 1 ) ONE Sri filed the present transfer CMP under section 24 of the Code of the Civil Procedure (hereinafter referred to as code in short) praying for transfer of the cases, I. A. No. 1191 of 2001 in O. S. No. 1258 of 2001 for creating charge on house at Simhapuri, vsp, O. S. No. 1258 of 2001 for monthly maintenance of Rs. 5,000/- on the file of the principal Senior Civil Judge, Rajahmundry, o. P. No. 215 of 2001 for granting judicial separation in the Court of Principal Senior civil Judge, Rajahmundry, and M. C. No. 51 of 2001 for monthly maintenance of Rs. 500/ - in the Court of Second Additional Judicial first Class Magistrate at Rajahmundry to the file of the V Additional District judge, Visakhapatnam, (Family Court, visakhapatnam District) for proper hearing and pass such other appropriate orders. All these disputes are between the husband, the petitioner in the transfer CMP and the wife, ch. Rajyalakshmi the respondent in the transfer CMP. The petitioner/husband also filed O. P. No. 487 of 2002 on the file of the family Court, Visakhapatnam for dissolution of marriage. ( 2 ) SRI K. Srinivasa Murthy, the learned counsel representing the petitioner had thoroughly taken me through several allegations made in detail in the affidavit filed in support of the transfer CMP and had submitted that in view of the facts and circumstances which had been explained in detail the relief as prayed for may be granted. The learned Counsel also submitted that there is no Family Court at Rajahmundry and taking advantage of the same the respondent/ wife had filed several litigations in different courts at Rajahmundry only with a view to put the petitioner into trouble. The learned counsel also had explained several aspects, which go to show that the respondent/wife is very adamant and she is not interested even in the welfare of the children. The learned Counsel further pointed out that the petitioner in fact has been already giving rs. 250/- per month as interim maintenance from July, 2002 onwards towards her expenses. The learned counsel also had explained several aspects, which go to show that the respondent/wife is very adamant and she is not interested even in the welfare of the children. The learned Counsel further pointed out that the petitioner in fact has been already giving rs. 250/- per month as interim maintenance from July, 2002 onwards towards her expenses. The learned Counsel also had pointed out that the Courts at Rajahmundry have no jurisdiction to entertain the matters filed at Rajahmundry and those matters should have been instituted in the Courts at visakhapatnam only and in order to harass the petitioner, the respondent deliberately filed all such cases at Rajahmundry. The learned Counsel also had explained that the petitioner is unable to attend these cases frequently since, such attendance is causing serious disruption to his official duties as senior Assistant in Personnel Department of port Trust. The learned Counsel also had explained that if the petitioner is put to financial troubles ultimately, it may result in disturbing the Engineering studies of his son also. The learned Counsel also had pointed out certain other health problems in this regard. ( 3 ) SRI Ch. Dhananjaya, the learned counsel representing respondent/wife had initially raised an objection as to the maintainability of the transfer CMP on the ground that a composite transfer CMP of this nature cannot be maintained under section 24 of the Code. The learned Counsel also had further pointed out that M. C. No. 51 of 2001 was filed on the file of the Second additional Judicial First Class Magistrate at rajahmundry under Section 125 of the Code of Criminal Procedure and the said proceeding under the Code of Criminal procedure is not amenable to be transferred by exercising powers under Section 24 of the Code and in this view of the matter also the transfer CMP is a misconceived one. The learned Counsel also had taken me through the counter-affidavit filed and had pointed out the difficulties which respondent/ wife is facing. It was also explained that the respondent/wife has no property or source of income and that is the reason why she has filed M. C. No. 51 of 2001 on the file of the Second Additional Judicial first Class Magistrate at Rajahmundry. It was also explained that the respondent/wife has no property or source of income and that is the reason why she has filed M. C. No. 51 of 2001 on the file of the Second Additional Judicial first Class Magistrate at Rajahmundry. The learned Counsel also submitted that the o. P. filed by the wife for judicial separation at Rajahmundry is first in point of time and subsequent thereto, the husband thought of filing O. P. for dissolution of marriage on the file of the Family Court, Visakhapatnam and this itself shows that the transfer cmp is not a bona fide one. The learned counsel further submitted that even in view of Section 21 A of the Hindu Marriage act, 1955 (hereinafter referred to as act in short) inasmuch as the O. P. filed by the wife for judicial separation being first in point of time, the later O. P. filed by the husband may have to be transferred to be tried along with the prior O. P. for the judicial separation. The learned Counsel also had taken me through paras 7,8 and 9 of the counter-affidavit and had explained the problems of the respondent/wife and while concluding the learned Counsel also had drawn my attention, to the aspect that at any rate the convenience of the wife may have to be taken into consideration while dealing with transfer of a matrimonial proceeding. ( 4 ) HEARD both the Counsel. ( 5 ) THE facts in brief for the purpose of disposal of the transfer CMP may be narrated as hereunder: ( 6 ) THE petitioner/husband had filed o. P. No. 487 of 2002 pending on the file of the Family Court of V Additional District judge, Visakhapatnam and it was filed on 17-9-2002 for dissolution of marriage, which had taken place on 11 -2-1976 at rajahmundry as per Hindu custom and rites. The marriage was consummated and the parties begot two children. Several other allegations in detail had been made in the affidavit filed in support of the transfer cmp relating to picking up the quarrel and other behaviour of respondent/wife. These are alt matters, which are to be decided after letting in evidence by both the parties. The marriage was consummated and the parties begot two children. Several other allegations in detail had been made in the affidavit filed in support of the transfer cmp relating to picking up the quarrel and other behaviour of respondent/wife. These are alt matters, which are to be decided after letting in evidence by both the parties. It was further stated that in the month of november, 2001 the respondent filed I. A. No. 1191 of 2001 in O. S. No. 1258 of 2001 for creating charge on house and O. S. No. 1258 of 2001 for monthly maintenance of Rs. 5,000/- both in the Court of Principal junior Civil Judge, Rajahmundry, O. P. No. 215 of 2001 for granting judicial separation on the file of the Principal Senior Civil Judge, rajahmundry and M. C. No. 51 of 2001 on the file of the Second Additional Judicial first Ciass Magistrate at Rajahmundry even though there is no Family Court at rajahmundry, East Godavari District. It is also stated that the petitioner is employed in visakhapatnam Port Trust and had been in service since 1979 and the respondent was staying with the petitioner at Visakhapatnam since 26 years. After notices were received from the Rajahmundry Court, petitioner went to the Court and when the learned Principal senior Civil Judge, Rajahmundry called upon for reconciliation continually for three times ie. , on 7-6-2002, 28-6-2002 and 20-7-2002, the petitioner attended all the three times by travelling more than 200 KMs by applying for leave with a hope of reconciliation with her, but, however, the respondent/wife absented with a view to put the petitioner into difficulties and that is how the matter was posted for inquiry. Several other allegations are made in detail at paras 3, 4, 5,6 and 7. These are all made in the affidavit filed in support of the transfer CMP for the purpose of showing how the respondent/ wife has been putting the petitioner/husband into trouble. As per the allegations made at paras 8 to 11 of the affidavit, the grounds for transfer are that there is no Family court at Rajahmundry and the Courts at. Rajahmundry have no jurisdiction to entertain the matters pending in the respective Courts and further since the petitioner is an employee there is serious disruption to his official duties since he is often required to attend these cases at Rajahmundry. Rajahmundry have no jurisdiction to entertain the matters pending in the respective Courts and further since the petitioner is an employee there is serious disruption to his official duties since he is often required to attend these cases at Rajahmundry. The counter-affidavit filed by the respondent/wife also is equally a lengthy counter-affidavit virtually denying all the allegations and throwing the blame on the petitioner/husband only. The truth or otherwise of all these allegations need not be gone into at this stage. However, the respondent/wife had taken a specific stand that a single transfer CMP of this nature is not maintainable and in the case of transfer of matrimonial proceedings paramount consideration is to be given to the wife s convenience. The respondent/wife also had explained that since she was unable to maintain herself, she had filed M. C. and also suit for maintenance. After she had filed o. P. for judicial separation, the petitioner/ husband had filed O. P. for divorce as a counter blast with a view to force her to attend the Family Court at Visakhapatnam and yet another allegation was also made that the petitioner/husband was planning to kill her, as he has been often proclaiming, by motor accident, and thus there is every apprehension and danger to her life and liberty if she is forced to attend the Court at visakhapatnam. The respondent also had taken a stand that she has been residing with her old parents and she has been depending upon them and she has no male assistance also to go to Visakhapatnam from rajahmundry and she cannot bear expenses to go over to Visakhapatnam and her father is a sick person who cannot accompany her to Visakhapatnam. She had also explained how she has been looking after the welfare of her daughter and how her presence may be essential to look after the needs of the pregnant daughter. In view of the respective pleadings of both husband and wife, the question is whether the petitioner is entitled to any relief at all in the present transfer cmp? ( 7 ) THE transfer CMP is filed under section 24 of the Code. In view of the respective pleadings of both husband and wife, the question is whether the petitioner is entitled to any relief at all in the present transfer cmp? ( 7 ) THE transfer CMP is filed under section 24 of the Code. M. C. No. 51 of 2001 on the file of the Second Additional Judicial first Class Magistrate, Rajahmundry is a maintenance proceeding filed under Section 125 of the Code of Criminal Procedure by the wife which cannot be transferred by exercising powers under Section 24 of the Code and hence definitely the transfer cmp so far as it relates to praying for the transfer of M. C. No. 51 of 2001 is definitely a misconceived remedy. In the present transfer CMP, no doubt the petitioner/ husband prayed for transfer of I. A. No. 1191 of 2001 in O. S. No. 1258 of 2001 on the file of the Principal Junior Civil Judge, rajahmundry and also O. P. No. 215 of 2001 on the file of the Principal Senior Civil judge, Rajahmundry to the Family Court, visakhapatnam. Normally a composite prayer of this nature cannot be permitted. But, however, in view of the respective pleadings of both the parties the fact that the petitioner/ husband also filed O. P. No. 487 of 2002 on the file of the Family Court, Visakhapatnam for dissolution of marriage which is subsequent to O. P. No. 215 of 2001 filed for judicial separation on the file of the Principal senior Civil Judge, Rajahmundry, had been referred to Section 21 A of the Act operates in the specified field provided the said conditions enumerated in the said provision are satisfied. No doubt, Section 24 of the code is a general provision. In view of the admitted facts by both the parties O. P. No. 215 of 2001 filed by the respondent/wife for judicial separation on the file of the principal Senior Civil Judge, Rajahmundry is first in point of time and subsequent thereto, the petitioner/husband filed O. P. No. 487 of 2002 for dissolution of marriage on the file of the Family Court, visakhapatnam under Section 13 of the Act. ( 8 ) IN view of these facts, I am of the considered opinion that this is a case where Section 21 A of the Act is squarely applicable and in view of the same though the petitioner/husband had not prayed for the relief of transfer relating to O. P. No. 487 of 2002 on the file of the Family Court, visakhapatnam, in view of the clear language of Section 21 A of the Act since the ground which will be referred to in a proceeding for judicial separation and a proceeding for divorce virtually will be one and the same, it is always desirable and advisable that the same Court should try and decide both the matters and hence O. P. No. 487 of 2002 pending on the file of the family Court, Visakhapatnam filed by the petitioner/husband is hereby withdrawn and transferred to Principal Senior Civil Judge, rajahmundry to be tried and decided along with O. P. No. 215 of 2001 filed by the respondent/wife in accordance with law. Except granting this relief, the rest of the relief prayed for by the petitioner/husband cannot be granted. ( 9 ) ACCORDINGLY, the transfer CMP is ordered to the extent indicated above. In view of the peculiar facts and circumstances this Court makes no order as to costs.