Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 592 (KAR)

Ramya Vijeta v. Daniel

2020-02-28

R.DEVDAS

body2020
JUDGMENT R. Devdas, J. - This petition is filed under Section 24 of the Code of Civil Procedure seeking transfer of the matrimonial case in M.C. No. 210/2019 from the Court of the Principal Judge, Family Court at Dharwad to the Court of the Principal Senior Civil Judge and JMFC at Udupi. 2. The admitted facts are that the marriage between the parties were solemnized on 29.10.2017 as per the Indian Marriage Act, at Udupi. Both the parties are doctors. The petitioner is presently working as Assistant Professor, at Manipal College of Dental Sciences at Manipal, Udupi, while the respondent is working at SDM College of Dental Sciences and Hospital, at Dharwad. The learned counsel for the petitioner submits that the parties have not lived together after the marriage for a long time. The petitioner continues to work at Manipal and she is staying at udupi, while the respondent is residing at Dharwad along with his parents. The learned counsel for the petitioner submits that the respondent has filed a matrimonial case in M.C. No. 210/2019 for a decree of divorce. It is submitted that the petitioner is residing at Udupi along with her parents and she travels to Manipal everyday to attend to her work. The petitioner has been appointed as Assistant Professor and she will not be able to take leave to attend to the Court proceedings at Dharwad. In this regard, the learned counsel points out to the order of appointment at Annexure-C, wherein at condition No. 6, it is stated that the appointment of the petitioner is bound by the rules and regulations enforced by the Management from time to time in relation to conduct, discipline, leave, holidays or any other matters in relation to the service conditions. 3. Per contra, the learned counsel for the respondent submits that the respondent is residing at Dharwad and he has to take care of his father, who has undergone brain surgery and the presence of the respondent is very much necessary at Dharwad. On the other hand, it is submitted that the petitioner is a well educated lady, who has worldly knowledge and has traveled worldwide. Moreover, the petitioner is used to travelling between Dharwad and Udupi and it will not be difficult for the petitioner to travel to Dharwad to attend to the Court proceedings. On the other hand, it is submitted that the petitioner is a well educated lady, who has worldly knowledge and has traveled worldwide. Moreover, the petitioner is used to travelling between Dharwad and Udupi and it will not be difficult for the petitioner to travel to Dharwad to attend to the Court proceedings. In this regard it is also submitted by the learned counsel for the respondent that the respondent is ready and willing to bear the travel expenses of the petitioner, if so required. The learned counsel for the respondent also points out to the order of appointment at Annexure-A filed along with the statement of objections to submit that the appointment of the respondent is on contract basis only for the period of one year initially, from the date of joining of service and it will be confirmed after satisfactory completion of the same. Insofar as leave is concerned, the learned counsel points out to condition No. 8 of the appointment letter, which mandates that the leave cannot be a claimed as a matter of rights. However, the respondent is entitled to leave benefits as per the SDME Society (R) Employees Service Rules, in force. 4. The learned counsel for the respondent places reliance on three decisions, as follows: (1) Anindita Das v. Srijit Das, reported in (2006) 9 SCC 197 ; (2) Smt. Sneha v. Sri Vinayak, reported in ILR 2013 Kar 165 ; and (3) Smt. Monika Gautam v. Jitendra @ Jeet Arya (unreported) , in MCC-2073-2018, High Court of Madhya Pradesh, which was decided on 01.08.2019. 5. While referring to the above said decisions, the learned counsel for the respondent strenuously contended that there cannot be a gender bias while dealing with a petition seeking transfer by wife. It is submitted that in the cases mentioned above, the courts have noticed that if the wife is placed in a position, if not better than that of the husband, and if the husband is ready and willing to bear the traveling expenses, boarding and lodging expenses of the wife, then the petition or cases filed by the husband should not be transferred at the instance of the wife. On the other hand, the wife should be directed to receive the travel expenses and attend to the Court proceedings, initiated by the husband. 6. Heard the learned counsels and perused the petition papers. 7. On the other hand, the wife should be directed to receive the travel expenses and attend to the Court proceedings, initiated by the husband. 6. Heard the learned counsels and perused the petition papers. 7. On perusing the decisions cited by the learned counsel for the respondent, this Court finds, as held by the Honble Apex Court in the Case of Sumita Singh v. Kumar Sanjay and Another, reported in AIR 2002 SC 396 that while dealing with the matrimonial case, the convenience of the wife should be considered. Even in the decisions cited by the learned counsel for the respondent, it has been noticed that the normal rule is that the convenience of the wife has to be taken into consideration in the case of transfer in matrimonial matters. Nevertheless, each case has to be dealt with on the merits of that particular case. 8. What this Court finds in the present case is that, the respondent is residing at Dharwad along with his parents. No doubt, it has been submitted that the respondents father has undergone brain surgery and therefore the sons presence is very much necessary to take care of his father. However, during the course of the arguments, it has been admitted by the learned counsel for the respondent that the respondents mother is residing along with him and as a matter of fact, she is also serving as a midwife or nurse. Having regard to such a situation, it is required to be noticed that in all the cases which have been cited by the respondent, the Courts have noticed that the requirement or presence of the parties before the Court is only during the stage of conciliation or evidence. It is not necessary that the parties have to attend to the Court proceedings on every date of hearing. Therefore, if the presence of the respondent is required in the proceedings on two or three dated of hearing, during the evidence, it cannot be held that the absence of the respondent at Dharwad on a particular day while travelling to Udupi would cause inconvenience or difficulty to the respondents father. Even otherwise, the respondent is attending to his duties from morning to evening in the hospital and therefore it cannot be argued that the respondent is always by the side of his father. 9. Even otherwise, the respondent is attending to his duties from morning to evening in the hospital and therefore it cannot be argued that the respondent is always by the side of his father. 9. If, on the other hand, had the petitioner agreed to the suggestion made by the learned counsel for the respondent that the petitioner shall be paid the traveling expenses and she should attend to the Court proceedings at Dharwad, it would have been different. The petitioner had pleaded her own difficulties and it is submitted at the hands of the petitioner that she is not in a position to travel out Manipal or Udupi to attend to the Court proceedings at Dharwad. 10. In the light of the foregoing and having considered the submission of both the sides, this Court is of the considered opinion that the petition is required to be allowed and is accordingly allowed. The M.C. No. 210/2018 stands transferred from the Court of the Principal Judge, Family Court, at Dharwad to the Court of the Principal Senior Civil Judge and JMFC, at Udupi. 11. The parties are directed to appear before the Senior Civil Judge and JMFC at Udupi, where M.C. No. 210/2019 is transferred to, on 20.03.2020, at about 11.00 a.m. without waiting for further notice. A copy of this order shall be forwarded to both the Courts concerned, for compliance. It is also directed that the matter may be considered and disposed of as expeditiously as possible. In view of disposal of the main petition, I.A. No. 1/2019 stands disposed of.