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2010 DIGILAW 28 (AP)

Anamika v. Annamneedi Raja Sekhar

2010-01-27

B.SESHASAYANA REDDY

body2010
Judgment : This transfer C.M.P., under Section 24 CPC, has been filed by the respondent in G.O.P.No.443 of 2009 on the file of the District Judge, Family Court, at Visakhapatnam to transfer the said O.P to the file of Family Court, at Hyderabad. 2. The petitioner and the respondent are wife and husband. They got married on 28.7.1998. They have a male child out of the wedlock on 06.12.2001. Their marriage is a love marriage and they led happy marital life till the year 2005. Some disputes cropped up between them in the year 2005 and thereupon, they fell apart. They filed O.P.No.1064 of 2007 under Section 13-B of the Hindu Marriage Act, 1955 seeking divorce on mutual consent before the Family Court, Visakhapatnam. The marriage between them came to be dissolved with effect from 30.06.2008. The wife along with the child has been staying at Hyderabad. 3. The husband filed G.O.P.No.443 of 2009 under Section 7(1)(a) of the Guardians and Wards Act to appoint him as guardian of the minor son. Initially, an ex parte order came to be passed in the said O.P. The wife filed C.M.A.No.936 of 2009 assailing the order dated 17.7.2009 passed in G.O.P.No.443 of 2009. The said C.M.A came to be allowed by a Division Bench of this Court and the matter came to be remanded to the Family Court, Visakhapatnam to pass appropriate orders on merits, by judgment dated 03.09.2009. The relevant portion of the judgment passed in C.M.A.No.936 of 2009 read as hereunder:- “Having regard to the fact that no notice had been served on the appellant herein before passing the order impugned in this appeal, without adverting to merits or otherwise of the contentions raised herein and at the option of both the counsel, the appeal is allowed and the matter is remanded back to the Court below for passing orders afresh within a period of six months from the date of receipt of a copy of this Judgment. It is needless to mention that the court below shall afford reasonable opportunity to both the parties to lead their evidence. No order as to costs.” 4. Thereafter, the wife filed the instant application seeking transfer of G.O.P.No.443 of 2009 from the file of Family Court, Visakhapatnam to the file of Family Court, Hyderabad. It is needless to mention that the court below shall afford reasonable opportunity to both the parties to lead their evidence. No order as to costs.” 4. Thereafter, the wife filed the instant application seeking transfer of G.O.P.No.443 of 2009 from the file of Family Court, Visakhapatnam to the file of Family Court, Hyderabad. Paragraph 7 of the affidavit filed in support of the petition needs to be noted and it is thus:- “I submit that even taken into consideration the allegations in the petition GOP 443/2009, the ordinary residence of the minor child is at Hyderabad. So, the petition filed by the respondent at Visakhapatnam is not maintainable in view of Section 9 of Guardians and Wards Act, 1890. I further submit that I am a working woman at Hyderabad and it is very difficult for me to get leave so as to attend the Court at Visakhapatnam. So, it is expedient in the interest of justice to transfer GOP 443/2009 on the file of the Family Court, Visakhapatnam to the Family Court, Hyderabad for its enquiry and Trial.” 5. Notice before admission came to be ordered on 19.11.2009. The respondent entered appearance through a counsel. No counter has been filed resisting the application. 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the petitioner submits that the petitioner is a woman and she is working at Hyderabad and she finds it difficult to go all the way from Hyderabad to Visakhapatnam to take the proceedings in O.P. filed by the respondent-husband seeking custody of the minor child. A further submission has been made that the O.P filed by the husband at Family Court, Visakhapatnam is not maintainable since the O.P seeking custody of the child is required to be filed at the place of the ordinary residence of the minor child. 8. In support his submissions, reliance has been placed on the decisions of this Court in D. Appa Rao v. D. Swarnalatha (1) 1996 (2) An.W.R.277, Harihar Pershad Jaiswal v. Suresh Jaiswal and others (2) 1977 ALT 373 , N.T. Raju v. N.Jyotsna (3) 1985 (2) 187 (D.B.) and the decision of Punjab and Haryana High Court in Sumitra Rani v. Iqbal Singh (4) AIR 2003 NOC 569 (Punj & Har) and the decision of Supreme Court in Sumita Singh v. Kumar Sanjay (5) (2001) 10 SCC 41. 9. 9. In D. Appa Rao v. D.Swarnalatha’s case (1 supra), it has been held that the question of jurisdiction of either Court is not relevant for the purpose of Section 24 of CPC, which in terms is very wide. Paragraph 7 of the cited judgment needs to be noted and it is thus:- “It is not necessary for the purpose of this case to decide whether the Hyderabad Court has jurisdiction to entertain the O.P filed by the wife. As contended by Smt. Malleswari, relying on Commissioner of Expenditure Tax v. S.R.Y.Sivaram Prasad Bahadur (6) AIR 1970 A.P.197, the question of jurisdiction of either Court is not relevant for the purpose Section 24 of CPC, which in terms is very wide. The fact that the minor daughter is now staying at Hyderabad is not denied by the respondent though the allegation that the daughter was admitted in Premier school is denied. The parties are also at issue regarding the place where the wife is working now. It is also not necessary to decide this aspect in these proceedings. Wherever the wife may be working, if the Rajahmundry Court has to hear the case, she has to travel to Rajahmundry along with her minor child which will necessarily dislocate the daughter’s studies. Thus, there is force in the first contention of the learned counsel for the petitioner.” 10. In Harihar Pershad Jaiswal’s case (2 supra), it has been held that it is not the place of residence of the natural guardian that gives the jurisdiction to the Court under Section (1) but it is the place of ordinary residence of the minor and the Legislature has designedly used the word ‘where the minor ordinarily resides’. Hence the actual residence of the minor, having regard to the circumstances under which the minor happens to reside at a particular place must be taken into consideration in deciding the place where the minor ordinarily resides. 11. In N.T.Raju’s case (3 supra), a Division Bench of this Court held that an application for guardianship of a minor is to be presented only before the District Court where the minor resides. 11. In N.T.Raju’s case (3 supra), a Division Bench of this Court held that an application for guardianship of a minor is to be presented only before the District Court where the minor resides. In Sumitra Rani v. Iqbal Singh’s case (4 supra), the Punjab and Haryana High Court held that the convenience of female has to be considered especially in matrimonial matters and in view of Section 9 of Guardians and Wards Act which provides that petition for custody of child has to be filed at place of residence of child. In Sumita Singh v. Kumar Sanjay (5 supra), the Supreme Court held that it is the wife’s convenience that must be looked at for trial of the matrimonial proceedings. 12. Learned counsel appearing for the respondent submits that there is a direction by a Division Bench of this Court in C.M.A.No.936 of 2009 to dispose of the matter in G.O.P.No.443 of 2009 within a period of six months from the date of receipt of a copy of this judgment and therefore, it indicates that the matter is required to be disposed of by the Family Court, Visakhapatnam. 13. A fact remains that O.P filed by the respondent herein is pending adjudication. The minor boy is residing with the petitioner at Hyderabad. The petitioner specifically stated in para 7 of the affidavit that she is working at Hyderabad and it is very difficult for her to get leave so as to attend the court at Visakhapatnam. This factual aspect has not been controverted by the respondent by filing counter. In Sumita Singh’s case (5th supra), the Supreme Court held that it is the wife’s convenience that must be looked at for trial of the matrimonial proceedings. 14. In that view of the matter, I find that the petitioner made out a valid ground for transfer of O.P.No.443 of 2009 from the file of Family Court, Visakhapatnam to the file of Family Court at Hyderabad. 15. Accordingly, this Tr.C.M.P is allowed by transferring G.O.P.No.443 of 2009 on the file of Family Court, Visakhapatnam to the file of Family Court, Hyderabad. The Family Court, Hyderabad on receipt of the papers from the Family Court, Visakhapatnam has to keep in view the direction given by the Division Bench of this Court in C.M.A.No.936 of 2009 and dispose of the same as expeditiously as possible.