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2003 DIGILAW 784 (AP)

P. Prameela v. P. Emanuel Vara Prasad

2003-06-23

P.S.NARAYANA

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( 1 ) HEARD Sri Jyoti Prasad representing Sri sarvabhouma Rao, Counsel for petitioner and Sri M. Srinivas Rao representing Sri kouturi Vinay Kumar, Counsel for respondent. ( 2 ) THE Transfer Civil Miscellanous petition is filed praying for transfer of O. P. No. 755/2002 on the file of Family Court, hyderabad to the Court of Senior Civil Judge, kovvur, West Godavari District or to any other nearby competent Court and pass such other suitable orders. ( 3 ) THE petitioner is the wife, the respondent/husband filed O. P. No. 755/2003 for dissolution of marriage under Sec. 10 of the Indian Divorce Act, 1869 on the file of the family Court, City Civil Court, Hyderabad. The parties are Christians. It is stated in the affidavit filed in support of the Transfer civil Miscellaneous Petition that the marriage of the parties was celebrated on 28-4-1992 at Rajahmundry, East Godavari district in accordance with Christian rites and customs and thereafter the petitioner joined the respondent at Rajahmundry and during the wedlock two children were born to them who are presently living with the petitioner. Several other allegations relating to harassment also had been averred in the affidavit filed in support of the Transfer civil Miscellaneous Petition. It is stated that the petitioner received a notice from the Family Court, Hyderabad in O. P. No. 755/2002 praying for the relief of divorce. It is further stated that there is nobody to assist the petitioner to travel all the way from Kovvur, West Godavari District to hyderabad and no doubt the petitioner had stated that she was represented by an advocate and she had requested her maternal uncle to attend the Court to represent her on 30-11-2002 and the Family court had adjourned the matter to 4-1-2003. It is also stated that the respondent filed the above O. P. only with a view to harass the petitioner. The petitioner is residing with her mother who is a widow and living as a family pensioner. It is further stated that it is impossible for the petitioner to go to hyderabad leaving her children at Kovvur to their fate to appear before the Family court, Hyderabad and her mother is an old lady living without any male assistance. The petitioner is residing with her mother who is a widow and living as a family pensioner. It is further stated that it is impossible for the petitioner to go to hyderabad leaving her children at Kovvur to their fate to appear before the Family court, Hyderabad and her mother is an old lady living without any male assistance. It is further stated that the petitioner is not at all employed and she is at present dependent on her aged mother who is both physically and financially weak and in such circumstances the petitioner filed the present transfer Civil Miscellaneous Petition under section 24 of the Code of Civil Procedure. ( 4 ) IT is needless to say that under Sec. 10 of the Indian Divorce Act, 1869, a petition for dissolution of marriage may be presented to the District Court or to the High Court. In the present Transfer Civil Miscellaneous petition, the petitioner/wife prayed for transfer of O. P. No. 755/2002 on the file of family Court, Hyderabad to Senior Civil judge at Kovvur, West Godavari which definitely cannot be ordered. However, it was also prayed to transfer the matter to any other nearby competent Court. Apart from Section 24 of the Code of Civil procedure. Sec. 8 of the Indian Divorce act, 1869 dealing with Extraordinary jurisdiction of High Court and Power to transfer suits, reads as:"the High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this act in the Court of any District Judge within the limits of its jurisdiction under this Act. Power to transfer suits: The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such district Judge. " ( 5 ) THE petitioner had specifically stated that she is an unemployee and she has been depending upon her old mother who is a pensioner and children also are with her. In such circumstances, taking into consideration the convenience of the wife, the petitioner is entitled to have the relief of transfer. However, it is specifically stated that the parties lived at Rajahmundry. In such circumstances, taking into consideration the convenience of the wife, the petitioner is entitled to have the relief of transfer. However, it is specifically stated that the parties lived at Rajahmundry. No doubt it is contended by the respondent/ husband that the petitioner and the respondent shifted their residence to hyderabad in the month of March 1998 and ever since then they lived together at H. No. 8-3-228/112/2, Rehmatnagar, yousufguda, Hyderabad by running a fancy shop. ( 6 ) THE truth or otherwise of several allegations made by the parties need not be gone into while deciding the present Transfer civil Miscellaneous Petition. Taking into consideration the fact that the parties lived at Rajahmundry and also in the light of the wide powers which can be exercised by this court under Section 24 of the Code of Civil procedure and also under Section 8 of the indian Divorce Act, 1869, this Court makes the following order: ( 7 ) O. P. NO. 755/2002 on the file of Family court, Hyderabad is hereby withdrawn and transferred to the Court of District Judge, rajahmundry, East Godavari District, to be tried and disposed of in accordance with law. ( 8 ) THE Transfer Civil Miscellaneous petition is ordered accordingly. No order as to costs.