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2009 DIGILAW 103 (AP)

Bakshmi Alakananda v. Bakshi Upender

2009-02-24

P.S.NARAYANA

body2009
Judgment : Heard the learned counsel. 2. This Court ordered notice to the respondent on 04.09.2008 and granted interim stay for a limited period, which is being extended from time to time. 3. Smt. Bakshi Alakananda, the petitioner herein, filed the present Transfer C.M.P. under Section 24 of the Code of Civil Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience) praying for withdrawal of O.P.No.1 of 2008 filed by the respondent-husband for dissolution of marriage on the file of the Family Court, Karimnagar to the file of the Family Court, City Civil Court, Hyderabad. 4. The Transfer C.M.P. filed by the wife-petitioner under Section 24 of the Code is being resisted by respondent/husband by filing a counter-affidavit in detail. 5. Smt. Jayanthi representing Smt. Rama Manoja, the learned Counsel representing the petitioner had taken this Court through the contents of the affidavit filed in support of the Transfer C.M.P. and also the specific grounds raised in the Transfer C.M.P. and would maintain that even in the light of the stand taken by the respondent/husband in the counter-affidavit and since the convenience of the wife normally to be taken into consideration apart from other factors, the Transfer C.M.P. to be ordered. The learned counsel also placed strong reliance on certain decisions to substantiate her submissions. 6. On the contrary Sri N. Ashok Kumar, the learned counsel representing the respondent/husband would maintain that absolutely there are no bonafides in the Transfer C.M.P. filed by the petitioner/wife. The learned counsel would maintain that the hardship, to which the husband to be placed also to be taken into consideration while passing an order in a Transfer C.M.P. filed under Section 24 of the Code. The learned counsel also would maintain that it is not as though the wife has been residing with her parents just from the recent times, but she has been residing with her parents even from October, 2002 onwards. The learned counsel also would maintain that even if the grounds of dependency to be taken into consideration in the light of the contradictory stands taken by the wife, the same being unbelievable. The reasons explained by the petitioner/wife cannot be the grounds for ordering the transfer of the O.P. as prayed for by the petitioner/wife. The learned counsel also would maintain that even if the grounds of dependency to be taken into consideration in the light of the contradictory stands taken by the wife, the same being unbelievable. The reasons explained by the petitioner/wife cannot be the grounds for ordering the transfer of the O.P. as prayed for by the petitioner/wife. The learned counsel also would maintain that the last residence of the spouses i.e., the wife and husband, the petitioner and the respondent being Karimnagar, it would be just and proper that the Family Court, Karimnagar Court to try and dispose of the said O.P. The learned counsel further would maintain that the loss of pay to the respondent/husband would cause lot of hardship in employment and in the light of the facts narrated detailed in the counter-affidavit, the Transfer C.M.P filed by the petitioner/wife to be dismissed. 7. Heard the learned counsel in elaboration. 8. The petitioner/wife filed the present Transfer C.M.P. under Section 24 of the Code praying for transfer of O.P.No.1 of 2008 filed by the respondent/husband for dissolution of marriage, which is pending on the file of the Family Court, Karimnagar to the Family Court, City Civil Court Hyderabad. 9. It is stated by the petitioner that the respondent filed O.P.No.1 of 2008 on the file of the Family Court, Karimnagar and the petitioner/wife is staying at parents' place since the date of the respondent abandoning the petitioner. It is also her case that the petitioner is totally depending on her parents for her livelihood and it is difficult for her to bear the travelling expenses to visit Karimnagar to attend the O.P. filed by the respondent/husband on every date of hearing. It is also stated that the petitioner is the eldest daughter of her parents and she has six younger sisters. The father of the petitioner is a retired employee and the entire family is dependant on his pension. The father of the petitioner has to accompany her to go to Karimnagar on every date of hearing and the petitioner is unable to afford the said expenditure. The petitioner also pleaded the specific grounds to the effect that the petitioner is financially dependant on her parents and the case filed at Karimnagar by the husband, to attend the said Court and to further conduct the proceedings, would involve further expenditure to the petitioner. The petitioner also pleaded the specific grounds to the effect that the petitioner is financially dependant on her parents and the case filed at Karimnagar by the husband, to attend the said Court and to further conduct the proceedings, would involve further expenditure to the petitioner. Further, specific ground had been averred that as the petitioner is working in a very small school on temporary basis she has no paid leaves and consequently, any leave availed for attending the hearing at Karimnagar would be on loss of pay resulting in hardship to the petitioner. It is also stated that the transfer of the petition from the file of the Family Court, Karimnagar to the file of the Family Court, City Civil Court, Hyderabad would facilitate speedy disposal of the case inasmuch as it is convenient for the petitioner to attend the Court on every date of hearing. It is further stated that it would convenient for the petitioner to adduce evidence at Hyderabad as all the witnesses are residents of Hyderabad. 10. In the Counter affidavit filed by the husband/respondent in detail, it is stated that the respondent filed O.P.No.1 of 2008 on the file of the Family Court, Karimnagar for dissolution of the marriage and further it is also true that the petitioner is staying at her parents' place, but however, it is stated that it is false to state that he had abandoned the petitioner at any point of time and further it is also stated that she is fully depending on her parents for her livelihood and it is difficult for her to bear the travelling expenses to visit Karimnagar to attend the O.P. on every date of hearing. However, respondent averred it is true that the petitioner is the eldest daughter of her parents and she has six younger sisters, but it is false to state that all the daughters are dependants on their parents. In fact, the father of the petitioner had celebrated the marriages of 2nd, 3rd and 4th daughters. Several of the facts had been narrated by the respondent and it is needless to say that the merits and demerits of several of the allegations made in the counter-affidavit may have to be gone into at the appropriate stage. It is stated by the respondent that originally on 17.04.2002 he got married the petitioner at Koti, Hyderabad as per Hindu rites and customs. It is stated by the respondent that originally on 17.04.2002 he got married the petitioner at Koti, Hyderabad as per Hindu rites and customs. Immediately after his marriage, the petitioner herein had joined his society and on the same day, the respondent had noticed some abnormality in the behaviour of the petitioner, since she was always interested to maintain loanliness away from the respondent and his mother. As there was no auspicious days, the nuptial ceremony was arranged in the first week of May, 2002. To his great surprise and shock, the petitioner did not allow me to have sexual inter course. By taking into consideration of the hailing of the petitioner, from Madhva Spiritual Institution, the respondent did not insist her to have marital obligations, by hoping that she may change her attitude in near future, but in vain. It appears that the petitioner has been suffering from some sort of mental disorder, where she is unable to understand for the purpose, for which, the marriage was performed. Apart from the above, the initiation as made by the respondent to remove the insecurity feeling in the mind of the petitioner, has become futile exercise. As such, in the normal course of life, the respondent cannot reasonably expected to live with the petitioner, since she never shown any interest to have sexual intercourse or at least she has shown any love and affection towards husband. It appears that the petitioner has been suffering from incurable frigidity. In this way, with the above said bitter experience, the respondent had continued as her husband, up to October, 2002, without having any such marital relations. In the last week of October, 2002, the father of the petitioner came to Karimnagar and took the petitioner to Karimnagjar, under the guise of first Deepavali, but he did not invite him. By went to her native, the petitioner never tried to come to Karimnagar, in spite of repeated requests had been made by the respondent from time to time, which itself shows that she has no interest to discharge her marital obligations. As the respondent hails Brahmin community, he has tried his level best to reconcile the matter, but in vain. By knowing the mental condition of the petitioner, the performing of marriage by her parents is most aggravated form of cruelty. As the respondent hails Brahmin community, he has tried his level best to reconcile the matter, but in vain. By knowing the mental condition of the petitioner, the performing of marriage by her parents is most aggravated form of cruelty. After five years of the desertion, as there is no other alternative, the respondent filed a petition for dissolution of his unsuccessful marriage with the petitioner in O.P.No.1 of 2008, on the file of the Hon'ble Judge, Family Court, at Karimnagar since she has lastly resided with the respondent at Karimnagar. After failure of reconciliation proceedings, the petitioner clearly moved the instant Transfer C.M.P. with an intention to make further harassment. The grounds, as incorporated in the C.M.P. are self contradictory and not of tenable. Since the first ground speaks that the petitioner is financially dependant on her parents, whereas in the second ground she stated that she is working as a teacher in a Private School, as such she cannot visit Karimnagar on each date of hearing. If the O.P. is transferred to Family Court, Hyderabad, it would cause great hardship. As a matter of fact, the respondent is sole male member in his family and in which his mother and sister are dependants and his father died while he was working in the Government Service and on the compassionate grounds, the respondent got obtained employment. Out of his earnings, he had performed his elder sister's marriage and at present he has to perform the marriage of his second sister, besides he has to look after her welfare as well as the welfare of his aged and ailed mother. By suffering great hardship for a period of five years, the respondent presented divorce petition, by vexing with the passive attitude of the petitioner. As such, it is not of his fault and invoking the jurisdiction of this Hon'ble Court under Section 24 of the Code is not justifiable and the petitioner did not assign main reasons for her desertion. 11. It is also specifically averred in the counter-affidavit that the Transfer C.M.P. filed by the petitioner/wife is liable to be dismissed on the following grounds:- Firstly:, since 5 years the petitioner has been residing with her parents' place i..e, from October, 2002 onwards. Secondly:, the contradictory grounds of dependency on her parents and self subsistence, by working as a teacher seems to be ambiguity of the mentality of petitioner. Secondly:, the contradictory grounds of dependency on her parents and self subsistence, by working as a teacher seems to be ambiguity of the mentality of petitioner. Thirdly:, the petitioner has voluntarily deserted the society of respondent, without any reasonable excuse. Fourthly:, the petitioner and respondent have lastly resided at Karimnagar, Fifthly:. The loss of pay and hardship in the employment is also applicable to the respondent, rather the petitioner. Hence, ultimately, the husband/respondent prayed for dismissal of the Transfer C.M.P. 12. Smt. Jayanthi, the learned counsel representing Smt. Rama Manoja, the learned counsel representing the petitioner placed strong reliance on the decisions reported in Amita Shah V. Virender Lal Shah (2003) 10 Supreme Court Cases 609) And Mangla Patil Kale V. Sanjeev Kumar Kale (2003) 10 Supreme Court Cases 280. In Amita Shah's case (1 supra), the Apex Court while dealing with the transfer proceedings in the context of matrimonial disputes, it was held that where proceedings were filed by the husband in Delhi and the wife was residing in Chamoli, Garhwal, 13 to 14 hours away and no one accompany wife and she having no place to stay in Delhi convenience of the wife and more so of the child to be taken into account the defence plea that the case may be transferred somewhere in between Delhi and Chamoli, transfer to Chamoli held to be made absolute. 13. In Mangla Patil Kale's case (2 supra), the Apex Court at paras 3 and 4 observed:- "We see every justification for allowing the transfer petition. It is not disputed that there is a small daughter from the marriage who is with the petitioner. It is not disputed that no maintenance has been paid to the petitioner or the daughter. It is not disputed that the father and mother of the petitioner suffer as aforestated, so that there is no one to accompany the petitioner to Delhi. That there is nowhere in Delhi where the petitioner can stay is apparent, because it is a matter of which notice can be taken of that Ambala and Delhi are some distance away. It is not disputed that the father and mother of the petitioner suffer as aforestated, so that there is no one to accompany the petitioner to Delhi. That there is nowhere in Delhi where the petitioner can stay is apparent, because it is a matter of which notice can be taken of that Ambala and Delhi are some distance away. In these circumstances, the transfer petition is allowed and HMA No. 895 of 1998 shall stand transferred from the Court of the Additional District Judge, Tis Hazari, New Delhi to the Court of District Judge, Jalgaon, Maharashtra, who shall try the case himself or assign it for hearing to a competent Court." 14. At the stage of hearing Smt. Jayanti the learned counsel representing Smt. Rama Manoj, the learned counsel representing the petitioner also placed before this Court, a copy of the petition filed by the wife under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (O.P. (SR) No. 2114 of 2009 on the file of the Family Court, City Civil Court, Hyderabad and it is stated that due to poverty, the wife prayed for providing of legal aid. 15. In a matrimonial dispute, when a transfer C.M.P. is filed under Section 24 of the Code praying for transfer of O.P. No.1 of 2008 from the Family Court, Karimnagar to the Family Court, City Civil Court, Hyderabad, it is no doubt true that the respective stands taken by both the petitioner-wife and the husband/respondent to be taken into consideration. 16. Certain of the facts had been admitted by the husband in the counter- affidavit. No doubt, the husband is also pleading inconvenience and hardship. In a case of this nature, while balancing the factors, the convenience of the wife normally to be kept in mind. The petitioner had explained the difficult to the effect that she has been working in a small school on temporary basis and the petitioner also explained the other convincing reasons. 17. In the light of the convincing reasons explained by the petitioner/wife though some hardship had been pleaded even by the respondent/husband, this Court is of the considered opinion that the relief as prayed for by the petitioner can be granted. 18. 17. In the light of the convincing reasons explained by the petitioner/wife though some hardship had been pleaded even by the respondent/husband, this Court is of the considered opinion that the relief as prayed for by the petitioner can be granted. 18. In the light of the same, the Transfer C.M.P. is ordered and accordingly, O.P.No.1 of 2008 on the file of the Family Court, Karimnagar is hereby withdrawn and transferred to the Family Court, City Civil Court, Hyderabad, to be heard and disposed of in accordance with law. At this stage, a request is made for early disposal of the O.P. Let the Family Court, City Civil Court, Hyderabad expedite the further proceedings in the said O.P. No order as to costs.