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2009 DIGILAW 127 (AP)

M. Aiswarya v. P. Gopi Krishna

2009-02-27

SANJAY KUMAR

body2009
Judgment : Common Order: These two petitions, Tr.CMP No.585 of 2008 and Tr.CMP No.590 of 2008, are filed by the wife and the husband respectively seeking transfer of the other's case under the provisions of Section 24 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'). The marriage of the parties was performed on 20.08.2005 at Image Gardens, Madhapur, Hyderabad. They resided together at the husband's family home at Yousufguda, Hyderabad, and thereafter in the United States of America. A daughter was born to them on 07.08.2006. The fall out in their marital relations has brought them to the present situation where they are trading cases under various provisions of law, including under the Hindu Marriage Act, 1955 (for brevity, 'the Act of 1955') and now, under Section 24 of the Code. In her affidavit filed in support of Tr.CMP No.585 of 2008, the wife stated that she had filed O.P. No.720 of 2008 before the Family Court, Vijayawada, seeking restitution of conjugal rights under Section 9 of the Act of 1955. She sought transfer of F.C.O.P. No.906 of 2008 filed by the husband before the Family Court, Hyderabad, seeking annulment of the marriage under Section 11 of the Act of 1955 or, in the alternative, a decree of divorce under Section 13(1)(ia) of the Act of 1955 on the ground of cruelty. She stated that her daughter was aged two years and five months and that, while staying with her parents at Vijayawada, she was continuing her studies so as to become self- sufficient. These grounds were cited as reasons for her incapacity to come to Hyderabad to contest the case filed by the husband at Hyderabad. She further stated that the husband's father was an influential person having a political background and the support of higher officials in the Government and that she was very much afraid to come to Hyderabad in connection with the case owing to this fact. In his counter affidavit, the husband stated that the Tr.CMP filed by the wife was fraudulent as various material facts had been suppressed. He stated that the wife had participated in the proceedings in the case filed by him at Hyderabad and having obtained an adjournment, she approached this Court by way of the Tr.CMP and obtained stay of further proceedings in his case. He stated that the wife had participated in the proceedings in the case filed by him at Hyderabad and having obtained an adjournment, she approached this Court by way of the Tr.CMP and obtained stay of further proceedings in his case. He alleged that she had suppressed the fact that she had received the caveat filed by him anticipating that she would move such a Tr.CMP and accordingly played fraud upon him and also, this Court. He denied that the wife was living with her parents at Vijayawada. According to him, the house at Vijayawada belonged to her maternalgrandfather and her parents were not residents of Vijayawada but were living at Naidugudem Village, Peddapadam Mandal, West Godavari District. He also alleged that the maternal grandfather of the wife owned a house at Hyderabad and as he had business interests in Hyderabad, he normally resided at Hyderabad. He further stated that the wife lived with the maternal grandfather at Hyderabad. He denied the statement of the wife that she was pursuing further studies. He denied her contention that his father was an influential person and that the wife feared him. He pointed out that the wife had attended the proceedings in the case on three occasions which clearly disproved her allegation in this regard. In her reply to the above counter, the wife stated that she was not aware of the purpose for which the husband had filed a caveat and therefore she did not inform her counsel about the same. She denied that there was any intention on her part to play fraud. She accepted that she had attended the hearings in the husband's case before the Family Court at Hyderbad but stated that she had a bad experience at the instance of the husband's father and that she and herfather were threatened with dire consequences if they contested the husband's case. She reiterated that she was staying with her parents at Vijayawada and pointed out that the notices sent in the husband's case were addressed to her parents' Vijayawada residence which were duly served on her. She denied the allegation that her parents were living at Naidugudem Village in West Godavari District. According to her, her grandparents were residing there and had landed properties in the Village. She denied the allegation that her parents were living at Naidugudem Village in West Godavari District. According to her, her grandparents were residing there and had landed properties in the Village. She also denied that she was living with her maternal grandfather at Hyderabad stating that her maternal grandfather himself was not staying at Hyderabad. She further stated that she was prosecuting B.B.M. Course at Nalanda Degree and P.G. College, Vijayawada, which was a three years course. Photocopies of the identity card issued by the said College and a newspaper picture of the students of Nalanda College which featured her also were filed in support of her averment. She stated that she was suffering from ill-health leading to her hospitalization for three days and hence, she was not in a position to travel long distances due to her health condition. Photocopies of hospital records and medical reports were produced in support of this statement. The husband came up with a rejoinder to the reply filed by the wife stating that certain allegations made therein had been raised for the first time and required to be controverted. The alleged suppression of filing of the caveat continued to be a bone of contention between the parties and the husband alleged that the wife, being literate, could not be permitted to cover up the fraud played by her by pleading ignorance. He reiterated that the wife's parents were residing at Naidugudem Village in West Godavari District and produced photo copies of the telephone bill issued by BSNL for the period 01.11.2008 to 30.11.2008, ration card issued in the name of the wife's father, voter's list of 2009 for Denduluru Assembly Constituency, Naidugudem Village showing the wife's parents names and a registered agreement of sale-cum-G.P.A. executed by the wife's father on 04.04.2008 showing his address at Naidugudem Village. With regard to the wife's alleged bad experience at the hands of his father, he stated that the silence of the wife as to the specifics thereof in the affidavit filed in support of the Tr.CMP clearly disclosed that this was an afterthought and a falsehood. He reiterated his allegation that the wife was not living with her parents but was residing with her maternal grandfather at Hyderabad. He reiterated his allegation that the wife was not living with her parents but was residing with her maternal grandfather at Hyderabad. He stated that the wife's family was extremely wealthy and influential and that he apprehended danger to his life and limb if his case was transferred to the Family Court at Vijayawada and he had to go there. He also undertook to bear the expenses for the wife's travel to Hyderabad for attending the court cases. In Tr.CMP No.590 of 2008 the husband sought the transfer of O.P. No.720 of 2008 filed by the wife before the Family Court at Vijayawada to be tried and disposed of along with F.C.O.P. No.906 of 2008 filed by him before the Family Court at Hyderabad. In his affidavit, he stated that he was presently employed in the United States of America and that he had come to India only to attend to the case. He further stated that the wife had filed her case before the Family Court at Vijayawada only to make it difficult for him to contest the matter. According to him, the wife's relations at Vijayawada were highly influential and on several occasions he and his father were threatened that if they came to Vijayawada they would meet their end. He therefore expressed the apprehension that there was danger to his life if he was required to go to Vijayawada to contest the wife's case. Surprisingly in this affidavit, the husband admitted that the wife resided at Vijayawada but stated that she was accustomed to shunting between Hyderabad and Vijayawada and stayed at both places as per her wish. He stated that the maternal grandfather of the wife owned a flat at Hyderabad where he was residing and that the wife frequently visited her grandfather and lived with him for long durations. He therefore stated that the wife would not have any difficulty in contesting his case before the Family Court at Hyderabad. He further stated that even at Vijayawada the wife lived under the care of her grandfather as her parents resided in West Godavari District. In her counter to the above affidavit, the wife stated that her mere participation in the proceedings in the husband's case before the Family Court at Hyderabad did not disentitle her from pursuing the remedy available to her under Section 24 of the Code. In her counter to the above affidavit, the wife stated that her mere participation in the proceedings in the husband's case before the Family Court at Hyderabad did not disentitle her from pursuing the remedy available to her under Section 24 of the Code. She stated that it was only after she attended the hearing on a couple of occasions that she realized that it would be impossible for her to come to Hyderabad every time. She also stated that she had a bad experience at the instance of the husband's father as he had threatened her and her father with dire consequences if they contested the husband's case. She submitted that she was residing at Vijayawada and was prosecuting her studies and denied the husband's allegation that her relations had threatened him and his father with what lay in store for them if they came to Vijayawada. She pointed out that the husband had not stated these aspects in the counter filed by him in her Tr.CMP which clearly indicated their falsity. She denied the allegation that her grandfather owned a flat at Hyderabad or that she was residing there. She also denied that her parents were residents of West Godavari District and that she was staying at Vijayawada under the care of her grandfather. She pointed out that the husband, having furnished the residential address of her father at Vijayawada in F.C.O.P. No.906 of 2008 and in his Tr.CMP, was now varying his own version. She stated that she was prosecuting B.B.M. Course at Nalanda Degree and P.G. College, Vijayawada and that her daughter was only two and half years old which made it difficult for her to travel with such a tender-aged child. She once again stated that she was suffering from ill-health requiring hospitalization for three days and that her health condition did not permit her to travel long distances. It is relevant to note that in both the Tr.CMPs, proceedings in the cases filed by the parties before the Family Courts at Vijayawada and Hyderabad, were stayed by this Court by way of interim orders. It is relevant to note that in both the Tr.CMPs, proceedings in the cases filed by the parties before the Family Courts at Vijayawada and Hyderabad, were stayed by this Court by way of interim orders. As is wont to happen break up of the most intimate of human relations - that of a husband and wife leads to bitterness and acrimony and owing to the same, in the present case also neither party has been very forthright as is evident from the allegations and counter-allegations traded by them in the pleadings referred to hereinabove. The alleged suppression by the wife of the husband's caveat petition which figures as a major issue between them may not really be of any consequence insofar as the adjudication of the Tr.CMPs is concerned. The said aspect, if at all, had bearing upon the grant and the continuance of interim orders during the pendency of the Tr.CMPs. Therefore, the said aspect need not trouble this Court at this juncture, when the cases are poised for final disposal. Sri M.Sudheer Kumar, learned counsel appearing for the wife, placed before this Court various Judgments. The Judgment of the Supreme Court in Rajani Kishor Pardeshi V. Kishor Babulal Pardeshi (2005) 12 SCC 237) is relied upon for the proposition that the convenience of the wife is to be preferred over the convenience of the husband in matters of transfer under Section 25 of the Code. Similar is the Judgment of the Supreme Court in Sangeeta Alias Shreya V. Prasant Vijay Wargiya (2004) 13 SCC 407 ). That was a case where the wife cited the ground that she had a two and half year old child, as in the present case, and the husband claimed that he apprehended a threat to his life and liberty if he visited the wife's town. The Court held that between the husband and wife, the convenience of the wife must prevail particularly when she had a two and half year old child and that it is always open to the husband to complain to the Court in the event of any threat to his life and liberty. The Court held that between the husband and wife, the convenience of the wife must prevail particularly when she had a two and half year old child and that it is always open to the husband to complain to the Court in the event of any threat to his life and liberty. Another Judgment relied upon by the learned counsel is that of the Supreme Court in Amita Shah V. Virender Lal Shah (2003) 10 SCC 609 ), wherein the court once again took the view on the facts obtaining therein, that the convenience of the wife and more particularly the three year old child should be taken into account. In Sumita Singh V. Kumar Sanjay And Another (2001) 10 SCC 41) the Supreme Court again reiterated that it is the wife's convenience that must weigh with the Court while ordering the transfer of the case. Per contra, a catena of decisions is pressed into service by Sri D.V.Sitharam Murthy, learned counsel appearing for the husband. In Gayatri Mohapatra V. Ashit Kumar Panda (2003) 11 SCC 731),the Supreme Court having found that the wife being a Director in a Company run by her mother traveled from place to place and could not be permitted to state that she was incapable of travel as a ground to seek transfer of the husband's case. In Teena Chhabra V. Manish Chhabra (2004) 13 SCC 411 ), the Supreme Court accepted the husband's offer to bear the expenses for the travel, boarding and lodging of the wife and dismissed her transfer petition on the ground that she had no source of income to travel. In M. Sivagami V. R. Raja (2005) 12 SCC 301 ), the Supreme Court disallowed the wife's transfer application based on monetary grounds directing the husband to pay her litigation costs and also to cover her costs and expenses and those of her witnesses. In Kanagalakshmi V. A.Venkatesan (2004) 13 SCC 405 ), the Supreme Court again accepted the plea of the husband that he would bear the expenses not only for the wife but also her companion for their travel and stay at the place where the case was pending and accordingly dismissed her transfer petition. In Kanagalakshmi V. A.Venkatesan (2004) 13 SCC 405 ), the Supreme Court again accepted the plea of the husband that he would bear the expenses not only for the wife but also her companion for their travel and stay at the place where the case was pending and accordingly dismissed her transfer petition. The same principle was reiterated in Priyanka Batra V. Manish Batra (2005) 12 SCC 236); Kakali Pal V. Balai Chandra Pal (2005) 12 SCC 216); Anuradha Dutta V. Subash Chandra Dutta (2004) 13 SCC 694 ) ; Sarita Singh Alias Babli Baghel V. A.P.Baghel (2005) 12 SCC 376 ) ; Kamudi Aurora V. Surinder Pal Singh Aurora (2004) 13 SCC 634 ) And Gargi Konar V. Jagjeet Singh (2005) 11 SCC 446 ). In Preeti Sharma V. Manjit Sharma (2005) 11 SCC 535 )the Supreme Court observed that merely because the petitioner was a lady it did not mean that she could not travel to another place and that, at the highest, she could be paid expenses for her travel and stay. In Premlata Singh And Others V. Rita Singh (2005) 12 SCC 277 ) the Supreme Court directed the transfer of the case taking into account the fact that the wife was undergoing treatment for kidney failure. In Usha George V. Koshy George (2000) 10 SCC 95 ), the Supreme Court having found that a number of hearings had already taken place held that it was not proper to transfer the proceedings to any other Court. In Anindita Das V. Srijit Das (2006) 9 SCC 197 ), the Supreme Court found that leniency to ladies shown by the Court in transfer matters was being often misused and taken advantage of by women. Stating so, the Court observed that it was required to consider each petition on its merit. On the facts of that case, the Court found that the grandparents were available to look after the six year old child and taking note of the husband's offer to bear the expenses for the wife's travel and stay along with her companion, rejected her transfer application based on those grounds. On the facts of that case, the Court found that the grandparents were available to look after the six year old child and taking note of the husband's offer to bear the expenses for the wife's travel and stay along with her companion, rejected her transfer application based on those grounds. In Eluri Raji Reddy And Others V. State of Delhi And Another (2004) 4 SCC 479 ) the Supreme Court found that as the wife had a house in Andhra Pradesh and her parents were living there it would be proper to transfer the cases filed by her at Delhi to a Court in Andhra Pradesh as sought by her husband. In Neelam Bhatia V. Satbir Singh Bhatia (2004) 13 SCC 436 ) the Supreme Court taking note of the fact that the case had progressed to the stage of trial disallowed the wife's transfer application, directing the husband to bear the travel and incidental expenses of the wife and her companion. In Meenakshi V. Mukesh Kumar (2004) 13 SCC 497 ), the Supreme Court accepted the statement made by the husband with regard to the safety and security of the wife and that he would bear her conveyance charges and disallowed the wife's transfer application. From an overview of the aforestated Judgments, it is clear that there is no hard and fast rule that can be applied in cases of this nature. Each case would ultimately turn on its own special facts and circumstances and must be dealt with accordingly. In this regard, reference may be made to the Judgment of the Supreme Court in Kulwinder Kaur V. Kandi Friends Education Trust (2008) 3 SCC 659 . The Supreme Court, while dealing with the power of the Court to transfer suits, appeals or other proceedings under Sections 24 and 25 of the Code, observed that the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations and that it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. The Court indicated certain broad propositions as to what may constitute a ground for transfer. The Court indicated certain broad propositions as to what may constitute a ground for transfer. These are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; "interest of justice" demanding for transfer of suit, appeal or other proceeding. The Court stated that the above were only illustrative and were not to be treated as exhaustive. The Supreme Court also observed that normally while making an order of transfer, the Court may not enter into the merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side but at the same time an order of transfer must reflect application of mind by the court and the circumstances which weighed with it in taking the action. Considering the issues involved in the two cases, one at Vijayawada and the other at Hyderabad, it is in the interest of both parties that they should be tried and disposed of by a single forum, be it the Family Court at Vijayawada or the Family Court at Hyderabad. The issue for consideration is as to which of these two Courts should be entrusted with the cases, duly taking into consideration the grounds raised by both parties in support of their transfer petitions. The grounds for transfer urged by the parties shorn of unnecessary detail may be summed up as hereunder: Grounds urged by the wife: 1) She has a daughter of two years and five months to take care of. 2) She is pursuing three years duration B.B.M. Degree course in Nalanda Degree and P.G. College at Vijayawada. 3) She is suffering from ill-health. 4) She has apprehensions with regard to her safety if she comes to Hyderabad as the husband's father, who is allegedly influential, has already issued threats to her and her father. 2) She is pursuing three years duration B.B.M. Degree course in Nalanda Degree and P.G. College at Vijayawada. 3) She is suffering from ill-health. 4) She has apprehensions with regard to her safety if she comes to Hyderabad as the husband's father, who is allegedly influential, has already issued threats to her and her father. Grounds urged by the husband: 1) He has apprehensions with regard to his life and limb if he is required to go to Vijayawada as the wife's relations at Vijayawada are allegedly powerful and influential and have already issued threats to him and his father. 2) It would be difficult for him to contest the matter at Vijayawada as he is presently employed in the United States of America. Dealing firstly with the grounds urged by the wife, it is no doubt true that the daughter born to the parties is at a tender age and though the wife's relations at Vijayawada would be in a position to take care of her, the absence of the mother would invariably have a negative impact on the tender mind of the infant. All the more so, if such absence is frequent, as it would necessarily be if the wife has to attend the hearings of the case at Hyderabad. Though the husband denied the wife's averment that she was pursuing further studies, the material placed before this Court clearly evidences that the wife is pursuing B.B.M. Degree Course in Nalanda Degree and P.G. College at Vijayawada. However, the plea of the wife that she is suffering from ill-health to the extent that she would not be in a position to travel to Hyderabad is not borne out by the record. The medical reports produced by her in support of this averment do not indicate any chronic illness requiring her to abstain from long distance travel. No certificate from a Medical Practitioner stating to the said effect has been produced. On the other hand, most of the medical reports filed seem to be indicative of normal studies certifying the lack of abnormalities. In any event, in the absence of certification by a competent licensed medical practitioner, it is not open to the wife to baldly state that she cannot undertake long distance travel. The apprehensions voiced by the wife with regard to her safety, as evidenced from the pleadings, seem to have developed from stage to stage. In any event, in the absence of certification by a competent licensed medical practitioner, it is not open to the wife to baldly state that she cannot undertake long distance travel. The apprehensions voiced by the wife with regard to her safety, as evidenced from the pleadings, seem to have developed from stage to stage. It is interesting to note that the husband has also alleged similar grounds in support of his transfer application. It is his case that he and his father were threatened by the wife's relations at Vijayawada and therefore he apprehends danger to his life and limb if he is required to go to Vijayawada. Such allegations and counter allegations are common in matters of this nature and as stated by the Supreme Court in Sangeeta Alias Shreya's case (2 supra), any threat to either of the parties can always be reported to the Court for necessary further action. Such unsubstantiated allegations by either party cannot be determinative of this adjudication. The other ground urged by the husband with regard to his being employed in the United States of America making it difficult for him to contest the wife's case at Vijayawada does not find favour with this Court. Though the husband appears to have been employed abroad at the time of filing of the pleadings, it is stated at the bar by Sri D.V.Sitharm Murthy that the husband's employment may have suffered a set back due to the recent economic recession the world over. In any event, it is not the case of the husband that either he or his father would be put to any inconvenience if they were to travel to Vijayawada to contest the cases. No pleading or evidence has been placed in this regard by the husband. The husband's endeavour throughout has been to contest the grounds urged by the wife and more specifically with regard to her residence at Vijayawada. It is his case that the wife was not residing at Vijayawada with her parents as they were residents of Naidugudem Village in West Godavari District. According to him, the wife was staying at Hyderabad with her maternal grandfather. It is his case that the wife was not residing at Vijayawada with her parents as they were residents of Naidugudem Village in West Godavari District. According to him, the wife was staying at Hyderabad with her maternal grandfather. However, as per his own pleadings in Tr.CMP No.590 of 2008, he admitted that the wife was residing at Vijayawada and indicated her address in the cause title not only in the Tr.CMP but also in F.C.O.P. No.906 of 2008 as being at Vijayawada. In the light of this admission on the part of the husband and the fact that notices in F.C.O.P. No.906 of 2008 were in fact served upon her at the Vijayawada address, there can be no dispute as to her being a resident of Vijayawada presently. This is also borne out by the fact that she is pursuing her studies in Nalanda Degree and P.G. College at Vijayawada. The residence of the wife's parents at Naidugudem Village in West Godavari District or elsewhere ceases to be of material concern, in the light of the established fact that the wife herself is residing at Vijayawada. In the light of the aforestated facts and in the totality of the circumstances of the case, it is clear that the inconvenience caused to the wife to travel to Hyderabad to attend to the cases would outweigh the inconvenience, if any, caused to the husband or to his father, who is prosecuting the case by virtue of the G.P.A. executed in his favour. The paramount consideration which must weigh with this Court is that of the interest of the infant daughter and the trauma that would be caused to her tender mind and her health by prolonged separation from her mother or by the frequent travel, if she accompanies her. It is also relevant to notice that Section 19 of the Act of 1955 was amended in the year 2003, whereby clause (iiia) was inserted therein, reserving liberty to the wife to file a petition under the Act of 1955 before the Court within the local limits of whose ordinary original civil jurisdiction she is residing on the date of presentation of the petition. This statutory provision clearly indicates that the convenience of the wife has been given a special status insofar as the place of suing is concerned. This statutory provision clearly indicates that the convenience of the wife has been given a special status insofar as the place of suing is concerned. Accordingly, this Court is of the opinion that sufficient grounds are made out on facts and in law to accept the plea of the wife for transfer of the husband's case, namely, F.C.O.P. No.906 of 2008 from the Family Court at Hyderabad to the Family Court at Vijayawada to be tried and disposed of along with O.P.No.720 of 2008 pending on the file of the said Court. The interim orders staying the proceedings in the two cases stand vacated. For the foregoing reasons, Tr.CMP No.585 of 2008 is allowed and Tr.CMP No.590 of 2008 is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.