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2012 DIGILAW 818 (KAR)

Sneha v. Vinayak

2012-09-26

H.G.RAMESH

body2012
Judgment : Petitioner has sought for transfer of MC 502/2012 pending before the III Addl. Family Court at Bangalore to III Addl. Senior Civil Judge, Hubli to be tried along with MC 49/2012 pending there. Petitioner has married the respondent as per hindu rites and customs on 20.11.2008 at Vidyadiraj Kalyana Mantap at Hubli. It is stated, she is a housewife and the respondent is a practicing advocate in Bangalore. Expressing that she has undergone harassment and cruelty while living with the respondent, despite harassment and humiliation suffered by her, with a hope of improvement in life, she has chosen not to file a divorce petition but filed a petition for restitution of conjugal rights, she has filed MC 49/2012 before the III Addl. Senior Civil Judge, Hubli in that regard. The respondent has filed a petition for dissolution of marriage in MC 502/2012 before the Family Court at Bangalore. According to the petitioner, respondent is trying to get the petition disposed of as early as possible. Alleging respondent and his mother managed to place her exparte in MC 502/2012 and that matter is posted for arguments, it is further stated, respondent is avoiding taking summons in the case filed by the petitioner in MC 49/2012. Petitioner is a housewife having no source of income whereas respondent is a practicing advocate having lucrative practice. She has also stated, it is difficult for her to attend the Family Court at Bangalore and she belongs to an orthodox family and is not used to travelling alone to Bangalore and other places and one of her family member has to accompany her to Bangalore and that is not feasible. Accordingly, she has sought for transfer of the case pending before the Family Court at Bangalore Court to Hubli where a matrimonial case filed for restitution of conjugal rights filed by her is pending consideration. Heard the counsel representing the parties. According to the petitioner's counsel, petitioner is residing at Dharwad and her father is working at Shimoga and her brother and mother are at Belgaum and there is a threat and harassment to the petitioner. Petitioner being a lady is unable to travel all the way from Dharwad to Bangalore on each and every hearing in the case pending before the Family Court at Bangalore. Petitioner being a lady is unable to travel all the way from Dharwad to Bangalore on each and every hearing in the case pending before the Family Court at Bangalore. It is also submitted, expressing desire to join the husband, that the mother in law is coming in the way of her living a marital life and on some other grounds also, she has sought for transfer of the case pending before the Family Court, Bangalore to Hubli where the petition filed for restitution of conjugal rights by her is pending consideration. Per contra, counsel for the respondent submitted, despite several requests and advise to the petitioner, she was adamant and she voluntarily left the matrimonial house and she is not an orthodox lady. She has studied up to MBA and worked in some industries and also worked as HR Manager and has moved from place to place and there is no harassment meted out to her. As such, there is no prima facie case for seeking transfer. Rather petitioner herself is not ready to live in the joint family. Respondent being the only son of his parents, he cannot separate from the family and the petitioner for no rhyme or reason, has left him and neither there is harassment meted out to her nor there is any inconvenience/humiliation caused to her. Further, referring to S.21(ii) of the Hindu Marriage Act, 1955, it is submitted, so far as transfer of petitions are concerned, if petitions are presented by both the parties, both petitions could be tried and heard together by the District Court and when two different petitions are presented at two different courts, the petition presented later shall be transferred to the District Court in which earlier petition was presented and both the petitions shall be heard and disposed of together as per S.21(a)(2) of the Act. Counsel has also relied upon the decision of the Apex Court in the case of Anindita Das Vs Srijit Das (2006) 9 SCC 197 to contend that lenience to ladies shown by the court in transfer matters is often misused and taken advantage of by women and the petition has to be considered on merits and accordingly, submitted petitioner has not made out a case for transfer. Rather the statutory provision mandates transfer of petition filed by the petitioner at Hubli be transferred to the Family Court at Bangalore. Rather the statutory provision mandates transfer of petition filed by the petitioner at Hubli be transferred to the Family Court at Bangalore. In view of the rival arguments, what is to be considered by this Court is whether the petition filed by the wife (petitioner) seeking for transfer of the matrimonial case pending before the Family Court at Bangalore should be transferred to Hubli Court where MC 49/2012 filed by petitioner for restitution of conjugal rights is pending consideration. As per the submission made at the Bar, there appears to be no grievance for the petitioner against the respondent and even now, she is ready to join him but for the respondent residing with his parents. There appears to be some misunderstanding between the spouses and according to the petitioner, she needs some privacy. The marriage has taken place about 2-3 years back and petitioner was residing with the respondent at Bangalore for more than a year. In course of time, some minor differences would have arisen between the family of the respondent and the petitioner. Petitioner is having no grievance at all against the respondent but for her mother in law. The mother in law is a practicing advocate in Bangalore and being busy, she has no time to spare as such, there is no question of harassment much less there would be lot of privacy to the petitioner, according to the respondent's counsel. More over, it is submitted, the petitioner was never harassed or humiliated. Despite several requests made to the petitioner to come back to the matrimonial home, flatly she refused and all the allegations made are not true. It appears, petitioner having stayed with her husband for more than a year, left her matrimonial home due to some misunderstanding. Thereafter, despite several requests made by the respondent's family, according to his submission, petitioner did not turn out. As such, they filed a petition before the family court, Bangalore for a divorce having regard to the attitude of the petitioner. Petitioner also filed a petition before the Hubli Court for restitution of conjugal rights. The Supreme Court deprecating transfer of cases at the request of the woman, in the above cited case, has opined that lenience shown to ladies by the court in such transfer cases is often misused and taken advantage. Petitioner also filed a petition before the Hubli Court for restitution of conjugal rights. The Supreme Court deprecating transfer of cases at the request of the woman, in the above cited case, has opined that lenience shown to ladies by the court in such transfer cases is often misused and taken advantage. The very pleading of the petitioner is that, she cannot travel alone, being an orthodox lady cannot be accepted in view of the fact that she has studied up to MBA and she has worked in some private offices and having worldly knowledge and has also moved from place to place. S.21(ii) of the Act provides for transfer of cases and where two cases are filed at different places, the case subsequently filed should be transferred to the court where the earlier case is filed. In that view of the matter, petitioner may not have a case to get transfer of the case pending before the Family Court, Bangalore to Family Court at Hubli. Apart from that, it is also undertaken by the counsel representing the respondent that they will pay the travelling expenses and for accommodation at Bangalore in the event petitioner refuses to stay back in the matrimonial house. Rather, it is for the petitioner to seek for transferring the case filed at Hubli to the Family Court, Bangalore where the case filed by the respondent for dissolution of marriage is pending consideration. Further, petitioner could demand for reasonable expenses for travelling from Dharwad/Hubli to Bangalore to appear in the case and seek for adjournment or exemption from appearance, if the circumstances so warrant or when there is no progress in the case and to appear before the Family Court at Bangalore as and when her personal presence is necessary. With that liberty, petition is dismissed. Whenever the petitioner travels to Bangalore to attend the court/hearing cost of Rs.3,000/- be paid to her by the respondent. Further, MC 49/2012 filed before the Civil Judge, Hubli is withdrawn and made over to be tried along with MC 502/2012 pending before the Family Court, Bangalore. Having regard to the nature of difficulty expressed, matter shall be expedited by the Family Court, Bangalore.