Thatikonda Dhanalakshmi v. Thatikonda Sai Kalyan Gupta
2023-02-06
BANDARU SYAMSUNDER
body2023
DigiLaw.ai
ORDER : 1. This Transfer Civil Miscellaneous Petition is filed by the petitioner/wife against the respondent/husband under Section 24 of the Code of Civil Procedure (in short “CPC”) seeking transfer of HMOP No. 9 of 2022 on the file of Senior Civil Judge’s Court, Anakapalle to the Additional Family Court, Visakhapatnam. 2. The case of the petitioner/wife in brief is that her marriage with the respondent solemnized on 26.04.2019 in a temple, opposite to Pendurthi police station, as per Hindu rites, caste and customs prevailing in their community in the presence of elders and well-wishers. She submits that after the marriage, she joined matrimonial home and marriage was consummated, and she lead happy marital life with the respondent at Anakapalle for a period of one month only. It is the contention of the petitioner that at the time of marriage, her parents presented dowry of Rs. 25,00,000/- to the respondent on demand of the respondent and his family members, and one month after the marriage, the respondent and his family members disliked her and started ill-treating her without any reason and not provided proper food and clothes to her, and then she filed a complaint before the DISHA police station, Visakhapatnam, who refused to register the case at the influence of father of the respondent, who is an employee in Greater Visakhapatnam Municipal Corporation. The petitioner alleged that the respondent developed illicit intimacy with woman with whom he used to chat and suppressing his faults, the respondent filed HMOP No. 9 of 2022 on the file of Senior Civil Judge’s Court, Anakapalle, seeking divorce with false ground, wherein she appeared and filed counter. The main contention of the petitioner is that as she is now staying at her parents house, as she has no source of income, she filed FCOP No. 943 of 2022 on the file of Additional Family court, Visakhapatnam, seeking maintenance from the respondent, wherein the Court issues summons to the respondent and matter is pending adjudication. The petitioner submits that she has no other means and presently depending on her parents and now she is physically and mentally depressed state and cannot travel to Anakapalle to attend the divorce case, filed by the respondent, as the family members of the respondent on many occasions beat her and caused injuries. She prays to allow the petition. 3.
The petitioner submits that she has no other means and presently depending on her parents and now she is physically and mentally depressed state and cannot travel to Anakapalle to attend the divorce case, filed by the respondent, as the family members of the respondent on many occasions beat her and caused injuries. She prays to allow the petition. 3. Though, notice sent to the respondent, not served and not returned. With the consent of the learned counsel for the petitioner, this case is taken-up for hearing. 4. I have heard learned counsel for the petitioner. 5. The learned counsel Mr. Umar Abdullah, representing on behalf of Mr. S.V.S.S. Siva Ram, learned counsel for the petitioner would submit that being a woman, petitioner has no male support cannot travel to Anakapalle to attend the Court in a petition filed by the respondent, seeking divorce which filed with false allegations. He would further submit that the petitioner has no means to meet the travel and other expenses to attend the Court at Anakapalle and there is a threat in the hands of the respondent, if the petitioner attends the Court at Anakapalle. He prays to allow the petition. 6. Now the point that emerges for consideration by this Court is: “Whether the petition is maintainable either in law or on facts?” 7. POINT: Before going to the merits of the case, it would be beneficial to quote Section 24 of CPC, which reads as under: “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. (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it: (i) try or dispose of the same. (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. (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 an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purpose 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. It is no doubt true that it is consistent view of Hon’ble Apex Court and High Courts in India that in respect of matrimonial proceedings, the convenience of wife has to be considered, but at the same time it has to be considered whether the contention of the petitioner/wife, seeking transfer on the ground mentioned in her petition are tenable can be accepted and we have to balance the convenience and inconvenience of the wife and also husband. The Hon’ble Apex Court in Krishna Veni Nagam vs. Harish Nagam in Transfer Petition (Civil) No. 1912 of 2014, Judgment dated 09.03.2017 held at Paras 14 to 18, which reads as under: “14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available.
Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing. 15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution. 16. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts. 17.
Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts. 17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice. 18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be: (i) Availability of video conferencing facility. (ii) Availability of legal aid service. (iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. (iv) E-mail address/phone number, if any, at which litigant from out station may communicate.” 9. In the present case, the petitioner/wife seeking transfer of divorce petition filed by the respondent/husband from Senior Civil Judge’s Court, Anakapalle to Additional Family Court, Visakhapatnam on the ground that she filed FCOP No. 943 of 2022 in the said Court, seeking maintenance. The petitioner herself mentioned in her petition that she gave reply to the legal notice issued by the respondent, and she filed counter in the divorce petition filed by the respondent before the Senior Civil Judge’s Court, Anakapalle, which itself shows that the petitioner engaged an Advocate and contesting the case. After filing the divorce petition, the petitioner appears to have been filed FCOP No. 943 of 2022 on the file of Additional Family Court, Visakhapatnam, seeking maintenance. It is not in dispute that the distance between Visakhapatnam city to Anakapale is 40 kms only.
After filing the divorce petition, the petitioner appears to have been filed FCOP No. 943 of 2022 on the file of Additional Family Court, Visakhapatnam, seeking maintenance. It is not in dispute that the distance between Visakhapatnam city to Anakapale is 40 kms only. When the petitioner already engaged a counsel and filed counter in a divorce petition filed by the respondent, simply because maintenance case filed by the petitioner at Family Court, Visakhapatnam, she cannot seek transfer of the divorce petition to the Family Court at Visakhapatnam. Mere mentioning of threat is not sufficient to consider the request of the petitioner when she has not mentioned when the respondent or his relatives beat her and when they threatened her, when she attended the Court at Anakapalle. 10. After considering the bald allegations made in the petition by the petitioner, and in view of distance between Visakhapatnam and Anakapalle, this Court is of an opinion that it is not a fit case to consider the request of the petitioner, seeking transfer of divorce petition to the Additional Family Court, Visakhapatnam. However, the petitioner is entitled to claim travelling and other expenses from the respondent, whenever she visits the Court at Anakapalle in HMOP No. 9 of 2022. 11. In the result, this Transfer Civil Miscellaneous Petition is dismissed with a direction that the petitioner wife is entitled to claim travelling and other expenses from the respondent whenever she visits the Court at Anakapalle in HMOP No. 9 of 2022. To avoid any ambiguity, the petitioner’s travel and other expenses in total is quantified at Rs. 10,000/- which shall be payable by the respondent to the petitioner, by the next date of adjournment when the petitioner attends the Court in HMOP No. 9 of 2022 on the file of Senior Civil Judge, Anakapalle. The Senior Civil Judge, Anakapalle shall dispose HMOP NO. 9 of 2022 in accordance with law as expeditiously as possible, within One (1) year from the date of receipt of Orders of this Court in the present petition. No order as to costs. Consequently, miscellaneous petitions if any, shall stand closed. Interim Stay granted if any, shall stand vacated.