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2020 DIGILAW 755 (AP)

Pathan Mumtaz Begum v. Mohammad Siraj Ahmed

2020-12-01

M.VENKATA RAMANA

body2020
ORDER : M. Venkata Ramana, J. 1. This petition is filed to withdraw O.S. No. 230 of 2019 from the file of the Court of learned I Additional Junior Civil Judge, Machilipatnam and to transfer to the file of the learned Family Judge, Guntur. 2. The petitioner is the wife of the respondent. Their marriage was celebrated on 21.08.2016 as per customs and rites applicable to their community, at Guntur. After the marriage, the petitioner joined the respondent in the matrimony. On 16.05.2018, a girl child was born to them. 3. Apparently, discordance arose in between them and there are allegations and counter allegations, made by both these parties in this matter. For the present purpose, they are not relevant. 4. But the fact remains that the petitioner is staying with her parents at Guntur. 5. O.S. No. 230 of 2019 was instituted by the respondent against the petitioner for restitution of conjugal obligations to discharge by the petitioner in favour of the respondent in their matrimonial home, invoking Dissolution of Muslim Marriage Act. The petitioner gave complaint in Kothapet Police Station, Guntur, where Cr. No. 222 of 2018 was registered for offences under Sections 498A IPC, 323 IPC, 506 IPC, 509 IPC r/w. 34 IPC as well as under Sections 3 and 4 of Dowry Prohibition Act. A charge sheet was also laid in which cognizance was taken in C.C. No. 944 of 2019 by the learned IV Additional Junior Civil Judge, Guntur. It is pending against the respondent and others. FCOP No. 577 of 2018 was also instituted by the petitioner against the respondent for maintenance and it was disposed of by an order dated 03.05.2019 directing him to pay monthly maintenance of different amounts. DVC No. 4 of 2019 was also presented by the petitioner against the respondent in the Court of learned Judicial Magistrate of First Class for PCR cases (Mobile Court), Guntur and it is pending disposal. 6. Now, the petitioner requests to transfer O.S. No. 230 of 2019 referred to above to the Court of learned Family Judge, Guntur. The reason assigned by her is that she has threat to her life, if she happens to attend the Court at Machilipatnam. 6. Now, the petitioner requests to transfer O.S. No. 230 of 2019 referred to above to the Court of learned Family Judge, Guntur. The reason assigned by her is that she has threat to her life, if she happens to attend the Court at Machilipatnam. Another reason is that she is unable to travel from Guntur to Machilipatnam with her daughter, who is 16 months old, while also setting out financial difficulties being a dependant of her parents' family. She also stated that the respondent can attend the Court at Guntur and that he is financially stable. 7. The respondent opposing this petition filed a counter-affidavit denying all such allegations set out in the affidavit filed in support of this petition. He admitted various proceedings pending in between them. According to him, all the cases filed by the petitioner and which are pending in different Courts at Guntur are with an intention to harass him and force him to stay at Guntur. He further alleged that it is the intention of the petitioner to see that he came down to Guntur leaving aside his family and parents at Machilipatnam. He claimed that the grounds stated by the petitioner for transfer of the suit are non-existing. Thus, he firmly opposed the request of the petitioner for transfer of the suit to Family Court, Guntur. 8. By an interim order in I.A. No. 1 of 2019 dated 23.09.2019, interim stay of all further proceedings in O.S. No. 230 of 2019 was granted until further orders. 9. Heard Sri A. Venkata Durga Rao, learned counsel for the petitioner, and Sri K. Venkatesh, learned counsel for the respondent. 10. Now, the point for determination is whether the request of the petitioner to transfer O.S. No. 230 of 2019 from the file the Court of the learned I Additional Junior Civil Judge, Machilipatnam, Krishna District is proper and acceptable? POINT:- 11. Undisputedly, the petitioner is staying with their daughter of 1½ years old at Guntur with her parents. Various cases pending between these spouses are set out supra. For the purpose of above cases, the respondent should necessarily attend the Courts at Guntur. Obviously, on account of the participation of the petitioner and the respondent, the maintenance case in FCOP No. 577 of 2018 was disposed of. 12. Various cases pending between these spouses are set out supra. For the purpose of above cases, the respondent should necessarily attend the Courts at Guntur. Obviously, on account of the participation of the petitioner and the respondent, the maintenance case in FCOP No. 577 of 2018 was disposed of. 12. The difficulty expressed by the petitioner to attend the Court at Machilipatnam with her child as such, cannot be overlooked. Carrying a baby of such tender age to a distant place is always a difficult proposition for a mother. Though the respondent has denied the inconvenience so alleged by the petitioner to attend the Court at Machilipatnam, the difficulty expressed by the petitioner in attending this Court at Machilipatnam should necessarily be borne in mind. The same measure if applied to the case of the respondent, it does not in any manner inconvenience him, when he attends the Court at Guntur. A mother with a child, depending on her parents, who had already the benefit of award of maintenance by the competent Court, is a sad reflection of her financial status. Thus, the grounds so set up by the petitioner stand established in this case. 13. However, the learned counsel for the respondent strenuously contended that the convenience of woman alone cannot be taken into consideration and it is a matter to consider from the perspective of both the spouses. There cannot be any difficulty to consider this issue. In support of such contention, the learned counsel for the petitioner sought to rely on Santhini vs. Vijaya Venketesh, 2018 (1) SCC 1 . It is a case where their Lordships considered use of video-conferencing methodology in a transfer petition, relating to matrimonial dispute. Application of the ratio in this ruling, is not of any assistance to the contention of the petitioner in this matter. 14. The learned counsel for the respondent also relied on Chejerla Srilakshmi vs. Chejerla Ramesh Babu, 2018 (4) ALD 162 . The predominant consideration in this ruling is with reference to application of ratio in Krishna Veni Nagam v. Harish Nagam, 2017 (4) SCC 150 . In fact, Krishna Veni Nagam was considered in Santhini vs. Vijaya Venketesh, 2018 (1) SCC 1 (supra) and partly it was overruled. The predominant consideration in this ruling is with reference to application of ratio in Krishna Veni Nagam v. Harish Nagam, 2017 (4) SCC 150 . In fact, Krishna Veni Nagam was considered in Santhini vs. Vijaya Venketesh, 2018 (1) SCC 1 (supra) and partly it was overruled. When the basis for the observations in Chejerla Srilakshmi, 2018 (4) ALD 162 (supra) is thus affected by the later Judgment in Santhini supra, it cannot offer assistance to the contention of the respondent. Though the convenience or otherwise of both the parties should be considered by the Court in an application of this nature, having regard to the given facts and circumstances, when they lean more in favour of the petitioner than the respondent on a graded scale, the request of the petitioner has to be accepted. 15. Thus, overruling the objections of the respondent, accepting the contention of the petitioner, this petition has to be allowed. 16. In the result, the petition is allowed. No costs. Consequently, O.S. No. 230 of 2019 now pending on the file of the Court of learned I-Additional Junior Civil Judge, Machilipatnam, Krishna District is withdrawn and is transferred to the file of the court of learned Family Judge, Guntur, for disposal in accordance with law. As sequel thereto, pending miscellaneous petitions, if any, shall stand closed. Interim orders, if any, shall stand vacated.