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2020 DIGILAW 518 (TS)

Phatke Avinash v. Phatke Himaja

2020-06-29

SHAMEEM AKTHER

body2020
JUDGMENT Shameem Akther, J. - This Transfer Civil Miscellaneous Petition, under Section 24 of the Code of Civil Procedure, 1908, is filed by the petitioner/husband, requesting to withdraw FCOP No.510 of 2019 from the Family Court, Ranga Reddy District at L.B.Nagar, and transfer the same to the Additional Family Court, City Civil Court, Hyderabad, for trial and disposal along with FCOP No.1000 of 2019, in accordance with law. 2. Heard the learned counsel for both the sides and perused the record. 3. The learned counsel for the petitioner/husband would contend that the marriage between the petitioner/husband and the respondent/wife took place on 20.06.2018 at Miryalguda. The couple lived happily for one month only. Soon thereafter, the respondent/wife has voluntarily left the company of the petitioner/husband levelling weird allegations against the petitioner/husband and his parents. Vexed with the attitude of the respondent/wife, the petitioner/husband filed FCOP No.1000 of 2019 before the Family Court, City Civil Court, Hyderabad, seeking divorce. As a counter blast, the respondent/wife filed the subject FCOP No.510 of 2019 before the Family Court, Ranga Reddy District at L.B.Nagar, seeking restitution of conjugal rights. In fact, when the respondent/wife tried to gain entry into the house owned by the mother of the petitioner/husband in order to harass them, the mother of the petitioner/husband filed O.S.No.1016 of 2019 before the VII Junior Civil Judge, Hyderabad, wherein, ad-interim injunction has been granted against the respondent/wife. The distance between the residence of the petitioner/husband and Family Court, Ranga Reddy District at L.B.Nagar is about 25 kilometres and it will be inconvenient for him to undertake the said travel, which takes about two hours during busy office hours. The parents of the petitioner/husband are senior citizens suffering from age old ailments. Since both the subject FCOPs arise out of the same marital dispute, it will be in the interest of justice to withdraw subject FCOP No.510 of 2019 filed by the respondent/wife and transfer the same to the Additional Family Court, City Civil Court, Hyderabad, for clubbing and trial along with FCOP No.1000 of 2019 filed by the petitioner/husband and ultimately prayed to allow the Transfer Civil Miscellaneous Petition as prayed for. 4. On the other hand, the learned counsel for the respondent/wife would contend that the grounds urged by the petitioner/husband are unsustainable and require no consideration. 4. On the other hand, the learned counsel for the respondent/wife would contend that the grounds urged by the petitioner/husband are unsustainable and require no consideration. The petitioner/husband and his parents have harassed the respondent/wife mentally and necked her out from her matrimonial home. In order to protect her marital life, the respondent/wife filed the subject FCOP No.510 of 2019 before the Family Court, Ranga Reddy District at L.B.Nagar, against the petitioner/husband seeking restitution of conjugal rights. She also filed a Domestic Violence Case and a Maintenance Case against the petitioner/husband and his family members. All the cases are pending before the Courts at L.B.Nagar, Ranga Reddy District. In matrimonial disputes, the paramount consideration is the convenience of the wife. Inconvenience of the petitioner/husband to undertake travel from Ameerpet to L.B.Nagar is not a ground to grant the relief claimed by him in this petition and ultimately prayed to dismiss the Transfer Civil Miscellaneous Petition. 5. In view of the above contentions of both the sides, the point that arises for determination in this Transfer Civil Miscellaneous Petition is as follows" "Whether the request of the petitioner/ husband to withdraw FCOP No.510 of 2019 from the Family Court, Ranga Reddy District at L.B.Nagar, and transfer the same to the Additional Family Court, City Civil Court, Hyderabad, for trial and disposal along with FCOP No.1000 of 2019, can be acceded to?" 6. It is evident from the record that the petitioner/husband filed FCOP No.1000 of 2019 before the Family Court, City Civil Court, Hyderabad, against the respondent/wife seeking dissolution of marriage, and the respondent/wife filed the subject FCOP No.510 of 2019 before the Family Court, Ranga Reddy District at L.B.Nagar, seeking restitution of conjugal rights. The main ground urged by the petitioner/husband to transfer the case filed by the respondent/wife is inconvenience to travel from Ameerpet to L.B.Nagar and the age old ailments of his mother. These aspects cannot be a ground to grant the relief claimed by the petitioner/husband. Admittedly, the respondent/wife did not file any transfer petition to transfer the case filed by the petitioner/husband to the Family Court, Ranga Reddy District at L.B.Nagar. However, since both the subject FCOPs arise out of the same marital dispute, it is better to dispose of both the cases by one forum, be it the Family Court, City Civil Court, Hyderabad, or the Family Court, Ranga Reddy District at L.B.Nagar. However, since both the subject FCOPs arise out of the same marital dispute, it is better to dispose of both the cases by one forum, be it the Family Court, City Civil Court, Hyderabad, or the Family Court, Ranga Reddy District at L.B.Nagar. The said exercise would save valuable time of the Courts, avoid conflicting decisions and would also help in minimising the financial expenses of the parties to the litigation. 7. Here, it is apt to extract Section 24 of the Code of Civil Procedure, which reads as follows: Section 24:- General Power of transfer and withdrawal: (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and- (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of any Order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section,- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) "proceeding" includes a proceeding for the execution of a decree or Order. (4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. 8. (4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. 8. Thus, it is clear that the jurisdiction exercised in the matter of transfer of a lawsuit, appeal or revision by the High Court and District Courts under Section 24 of CPC is not bound by any application produced by any of the parties. Section 24 of the CPC confers power on the High Court and District Courts to transfer the suits and appeals or other proceedings, at any stage, either on application or suo motu. 9. It is also relevant to state that Section 19 of the Hindu Marriage Act, 1955, has been amended in the year 2003, by insertion of proviso (iii)(a). The amended Section 19(iii)(a) of the Act gives special preference to the wife to file a petition and prosecute the same, before the Court within whose jurisdiction she resides. Law is well settled that in transfer of matrimonial cases from one Court to another Court, convenience of the wife is of paramount importance. In the instant case, both the Courts before which the subject FCOPs filed by the wife and husband are pending, are situated in Hyderabad city limits only. The distance between Ameerpet and L.B.Nagar is only about 20 kilometres. No prejudice would be caused to the petitioner/husband, if the FCOP filed by him is withdrawn and transferred to the Court before which, the FCOP filed by the respondent/wife is pending. Though small inconvenience may be caused to the husband in attending the Court at L.B.Nagar, the convenience of the wife should be preferred and shall prevail over the inconvenience, if any, which may be caused to the husband. Under these circumstances, this Court deems it appropriate to transfer the case filed by the petitioner/husband to the Court before which the case filed by the wife is pending. 10. Accordingly, FCOP No.1000 of 2019 pending before the Family Court, City Civil Court, Hyderabad, is withdrawn and transferred to the Family Court, Ranga Reddy District at L.B.Nagar, for trial and disposal, either jointly or simultaneously, along with FCOP No.510 of 2019 filed by the respondent/wife, in accordance with law. 11. 10. Accordingly, FCOP No.1000 of 2019 pending before the Family Court, City Civil Court, Hyderabad, is withdrawn and transferred to the Family Court, Ranga Reddy District at L.B.Nagar, for trial and disposal, either jointly or simultaneously, along with FCOP No.510 of 2019 filed by the respondent/wife, in accordance with law. 11. The Transfer Civil Miscellaneous Petition is disposed of accordingly. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Transfer CMP, shall stand closed.