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2021 DIGILAW 2 (KAR)

Shivangouda S/o. Late Shankarappagouda Patil @ Police Patil v. Savita W/o. Shivangouda Patil @ Police Patil

2021-01-04

JYOTI MULIMANI

body2021
ORDER : 1. Sri.Ganesh S.Kalaburgi, learned counsel for petitioner and Sri.B.K.Hiremath, learned counsel for respondent have appeared in-person. 2. In these proceeding, the parties to a dispute have chosen to litigate in order to determine where they shall litigate. 3. The short facts are as under; Petitioner and respondent are husband and wife and their marriage was solemnized on 29.04.2008 at Maya Mandir Kalyan Mantap at Kalaburagi. From the wedlock, they have a child by name - Tarun. Petitioner and respondent lived happily for four years. It is averred that respondent was earlier working in Hipparga village, Jhamkhandi Taluk, Bagalkot District and petitioner was working in Kalaburagi District. Despite the work load, petitioner used to travel to respondent's place frequently. As the distance was creating lot of differences among petitioner and respondent, petitioner requested respondent to take transfer to Kalaburagi. He also made all the facilities such as house, car and other facilities available for his wife. But the wife asked to resign from his job and move to Bagalkot to live with her and make a living out of her earnings only. The said demand was not fulfilled by petitioner; hence it is stated that respondent deserted him and started living separately from her husband. Petitioner in order to have cordial relationship and in order to solve the issue amicably and also to avoid negative impact on the child went to the place of respondent many a times to bring her back, but all those efforts went in vain. Petitioner finally in order to lead his life with the respondent filed a petition for restitution of conjugal rights in M.C.No.207/2016 before the Family Court, Kalaburagi. Respondent contested the said case and filed her objections. It is also stated that she requested petitioner not to file such petitions and also assured that she would come back and join him. Believing the assurance, petitioner did not contest the petition and hence, the same was dismissed for non-prosecution. As matter stood thus, as per the assurance made by his wife, petitioner waited for respondent to come back to her matrimonial home and discharge her marital obligations, but to his shock, she initiated proceedings for partition and separate possession in O.S.No.84/2018 before the Senior Civil Judge & JMFC, Jewergi. Further, she also initiated proceedings for divorce in M.C.No.8/2019 before the I Additional Senior Civil Judge and JMFC, Bagalkot against petitioner. Further, she also initiated proceedings for divorce in M.C.No.8/2019 before the I Additional Senior Civil Judge and JMFC, Bagalkot against petitioner. Aggrieved by the institution of the divorce petition, petitioner has filed this petition under Section 24 of CPC seeking transfer of M.C.No.8/2019 from the Court of I Additional Senior Civil Judge and JMFC, Bagalkot to Senior Civil Judge, Jewergi. 4. Sri.Ganesh S. Kalaburgi, learned counsel vehemently submits that petitioner / husband had filed petition before Family Court at Kalaburagi for restitution of conjugal rights and the same was contested by respondent. In order to harass him, respondent has filed divorce petition before the Senior Civil Judge, Bagalkot, which has no jurisdiction to entertain the petition. A further submission was made that respondent on behalf of her son has filed suit for partition against petitioner before the Senior Civil Judge at Jewergi. In the circumstances, it may not cause any inconvenience if the divorce petition is transferred to the Court at Jewergi. It is contended that respondent is a Government employee and she is gainfully employed. Hence, he sought to urge that there is no impediment for the respondent to travel from Bagalkot to Jewergi to contest the case. Lastly, he submitted that the case may be transferred from the Senior Civil Judge, Bagalkot to the Court of Senior Civil Judge, Jewargi. Accordingly, he submitted that the revision petition may be allowed. 5. Sri.B.K.Hiremath, learned counsel for respondent submitted that though in the cause title the address of respondent is shown as resident of Jewergi Taluk, Kalaburagi District, but she is residing at Bagalkot. Therefore, she has filed a divorce petition before the I Additional Senior Civil Judge and JMFC, Bagalkot. A further submission was made that respondent is not in a position to travel all the way from Bagalkot to Jewargi and engage a counsel and contest the case. It has been contended that respondent has a minor child to look after. Therefore, it is not possible for her to attend the case at Jewargi Court. Counsel also submitted that petitioner has not made out any good grounds to transfer the case from Bagalkot to Jewargi. Lastly, he submitted that the proceedings are in the concluding stage hence, no useful purpose will be served if the case is transferred. Accordingly, he submitted that the petition may be dismissed. 6. Counsel also submitted that petitioner has not made out any good grounds to transfer the case from Bagalkot to Jewargi. Lastly, he submitted that the proceedings are in the concluding stage hence, no useful purpose will be served if the case is transferred. Accordingly, he submitted that the petition may be dismissed. 6. I have heard the contentions urged on behalf of petitioner and respondent. The sole question which would arise for consideration is whether the case i.e., M.C.No.8/2019 requires to be transferred to the Court of Jewargi? It is not in dispute that both petitioner and respondent are husband and wife. Their marriage was solemnized on 29-04-2008. They lived blissfully for some time. They are blessed with one son. Due to difference of opinion, and misunderstanding, respondent was constrained to live apart from her husband. Due to conflicts and misunderstandings, parties have chosen to litigate the issues before the Court of law. Both of them have filed cases as against each other. One among them is the petition filed by the wife M.C.No.8/2019, wherein respondent has sought the aid of the Court in seeking the relief of divorce. She has chosen the forum of I Additional Senior Civil Judge and JMFC, Bagalkot. But the husband -petitioner has sought for transfer of the case. The question being whether there is some other forum which is appropriate for the trial of the action. According to petitioner, the Court at Jewargi is the appropriate forum to litigate the dispute. He has stated that respondent has filed a suit for partition in Jewargi Court. Hence, it may not cause inconvenience to litigate the matrimonial matter at Jewargi Court. On the other hand, respondent -wife has pleaded that she has minor child to attend and it may not be possible for her to travel from Bagalkot to Jewargi and contest the case at Jewargi Court. She has specifically pleaded her inconvenience. In this regard, it would be relevant to refer to Section 24 of the Code of Civil Procedure, 1908. She has specifically pleaded her inconvenience. In this regard, it would be relevant to refer to Section 24 of the Code of Civil Procedure, 1908. "24 GENERAL POWER OF TRANSFER AND WITHDRAWL (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." The Section confers a general power to transfer, withdraw and transfer suits, appeals or other proceedings at any stage on the application of party. The purpose of Section 24 CPC is merely to confer discretionary power. A Court acting under Section 24 CPC may or may not in its judicial discretion transfer a particular case. It would be relevant to note that the basic principle governing the granting of a petition under Section 24 CPC is that the petition is not to be dealt with in a light hearted manner and transfer of a case from one Court to another should not be granted readily for any fancied notion of the petitioning litigant because of the reason that such transfer of a case from one Judge to another in effect casts a doubt on the integrity, competence and reputation of the concerned Judge. Unless and until a sufficiently cogent ground is disclosed, transfer should not be allowed as a matter of course. For the purpose of such transfer, balance of convenience of the parties should be considered. It is well established that whenever Courts are called upon to consider the plea of transfer in matrimonial matters, the convenience of the wife is relevant consideration. For the purpose of such transfer, balance of convenience of the parties should be considered. It is well established that whenever Courts are called upon to consider the plea of transfer in matrimonial matters, the convenience of the wife is relevant consideration. In the present case, it is not in dispute that the wife is residing at Bagalkot and she has chosen the forum and has initiated action in the Court of Bagalkot. It is also not in dispute that she has a minor child to attend and she is not in a position to travel from Bagalkot to Jewargi to attend the case in case of transfer. She has pleaded her inconvenience to travel from Bagalkot to Jewargi to attend the case. On the other hand, petitioner has stated that the case may be transferred to Jewargi Court. The reasons advanced in favour of transfer are that the Court at Bagalkot has no jurisdiction, the marriage was solemnized at Kalaburagi, earlier petition for conjugal rights was filed at Jewargi. Hence, there is no reason or jurisdiction to file petition for divorce at Bagalkot. Henceforth, the jurisdictional Court to entertain the petition (divorce petition) is the Court at Jewargi, but not the Court in Bagalkot. While arguing the case, learned counsel vehemently urged that the Court at Bagalkot has no jurisdiction to entertain the petition. In my opinion, the objection regarding jurisdiction is no longer res integra in view of the law laid down by this Court in M.V.REKHA v. SATHYA @ SURAJ reported in ILR 2010 KARNATAKA 5407. It is perhaps well to observe that whatever reasons may be advanced in favour of transfer petition, the doctrine of ‘forum of conveniens’ cannot be applied. Lastly, it was urged that respondent is gainfully employed and she has no inconvenience to attend the case at Jewargi Court. Hence, the petition may be transferred. The plea of petitioner cannot be sustained unless the Court is satisfied that the case may be tried more suitably for the interests of all the parties and for the ends of justice at Jewargi. The question is one of convenience and not of the suitability or appropriateness of the relevant jurisdiction. I can say only this much that “unless the balance is strongly in favour of petitioner, the respondent’s choice of forum should rarely be disturbed”. This is strong language. The question is one of convenience and not of the suitability or appropriateness of the relevant jurisdiction. I can say only this much that “unless the balance is strongly in favour of petitioner, the respondent’s choice of forum should rarely be disturbed”. This is strong language. However, in matrimonial cases, it is readily understandable that a strong preference should be given to the forum and Court chosen by the wife. It is needless to say that whatever reasons may be advanced in favour of transfer of petition, the petition cannot be transferred since petitioner has not satisfied the Court that the Court of Jewargi is the most appropriate forum to try the action. While arguing the case, learned counsel for respondent vehemently urged that the proceedings are in the concluding stage. Counsel for petitioner does not dispute the same. In view of the fact that the proceedings are already in the concluding stage, it may not serve any useful purpose if the petition / case is transferred. Hence, it may not be proper to direct the transfer petition from Bagalkot to Jewargi. At the end of the day what seems to me important is this, whenever Courts are called upon to consider the plea of transfer of matrimonial petitions, Courts have to take into consideration of the safety measures and the restrictions for travel / movement especially of lady litigants. 7. I find no good grounds to transfer M.C.No.8/2019 from the Court of I Additional Senior Civil Judge & JMFC, Bagalkot to the Court of Senior Civil Judge, Jewergi. Accordingly, civil petition is dismissed. In view of dismissal of the main petition, I.A.No.1/2019 does not survive for consideration and the same is disposed of.