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2023 DIGILAW 542 (AP)

Muvva Nithya v. Muvva Bhargav

2023-03-15

BANDARU SYAMSUNDER

body2023
ORDER : This Transfer Civil Miscellaneous Petition is filed by the petitioner/wife under Section 24 of Civil Procedure Code (in short “CPC”) seeking transfer of H.M.O.P. No.97 of 2021 on the file of II Additional Senior Civil Judge Court, Ongole, Prakasam District to Family Court, Visakhapatnam. 2. The case of the petitioner is that her marriage with respondent solemnised on 06.10.2017 in a function hall at Ongole town as per Hindu rites and customs prevailing in their community which was an arranged marriage. The petitioner alleged that at the time of marriage, her parents have fulfilled all demands of the respondent and his family members by paying money and gold as dowry. After that, she joined the respondent at Nippatlapadu village to lead marital life and the marriage was duly consummated. The contention of the petitioner is that they both lived at Bangalore where the respondent was working. She also alleged that the respondent harassed her on demand of additional dowry at the instigation of his family members and he necked her out from the matrimonial home and then she reached her parents’ place which is Basavannapalem Village of Prakasam District. The mediation conducted by elders was said to be failed and thereafter she lodged a report before Disha Women Police against the respondent and his family members who registered the criminal case, which is pending investigation. Then respondent filed O.P. No.49 of 2020 under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights before Family Court, Ongole and she also filed O.P. No.97 of 2021 on the file of II Additional Senior Civil Judge Court, Ongole seeking divorce. The main contention of the petitioner is that after filing of divorce petition at her native place, they faced several financial problems during Covid period and then she shifted her residence to Visakhapatnam, where herself and her mother are taking shelter in their relatives’ house. At present she is said to be living at Visakhapatnam at the mercy of her relatives. The petitioner also stated that now she is not having any source of income to attend the Court at Ongole in the divorce petition filed by her and prays to transfer the case from Senior Civil Judge Court, Ongole to Family Court, Visakhapatnam. 3. The respondent/husband filed a counter affidavit denying averments made in the affidavit of the petitioner. The petitioner also stated that now she is not having any source of income to attend the Court at Ongole in the divorce petition filed by her and prays to transfer the case from Senior Civil Judge Court, Ongole to Family Court, Visakhapatnam. 3. The respondent/husband filed a counter affidavit denying averments made in the affidavit of the petitioner. It is the contention of the respondent that petitioner has filed a divorce petition suppressing material facts and also her ill health. He submits that the Family Court, Visakhapatnam has no jurisdiction to try the case as they both lastly resided together at Ongole and father of the petitioner is also living at Ongole of Prakasam District and mother of the petitioner is residing at Maddipadu Mandal of Prakasam District, but only to harass him, she moved an application seeking for transfer. He prays to dismiss the petition. 4. I have heard both sides. 5. The learned counsel for the petitioner would submit that though petitioner has filed petition before Senior Civil Judge Court, Ongole seeking divorce, she filed the present transfer petition due to financial crisis, as father of the petitioner deserted her and her mother, both are now residing in their relatives’ house at Visakhapatnam, where the petitioner working in a hospital as a receptionist, due to that she is seeking transfer of divorce petition filed by her from Senior Civil Judge Court, Ongole to Family Court, Visakhapatnam. He would further submit that the petitioner also filed DVC case against the respondent wherein he has to attend the Court and husband also moved an application seeking transfer of DVC case which the petitioner is opposing. He prays to allow the petition. 6. The learned counsel for respondent opposed the contention of the petitioner on the ground that the petitioner, who herself filed divorce petition before Senior Civil Judge Court, Ongole, only to harass the respondent said to be shifted her residence to Visakhapatnam and sought transfer and also filed DVC Case though, she filed criminal complaint against the respondent at Ongole. She relied on decision in Preeti Sharma Petitioner Vs. Manjit Sharma-Respondent, (2005) 11 SCC 535 where the Hon’ble Apex Court held at para 2, which reads as under:- “2. She relied on decision in Preeti Sharma Petitioner Vs. Manjit Sharma-Respondent, (2005) 11 SCC 535 where the Hon’ble Apex Court held at para 2, which reads as under:- “2. The grounds made out are that the petitioner is an unemployed lady and totally dependent on her uncle and that she will be hard-pressed to defend the suit at Muzaffar Nagar. It is also claimed that there is a petition for restitution of conjugal rights and certain other proceedings pending in Delhi. In our view, no substantial ground for transfer has been made out. If the petitioner wishes that all cases be tried at one place, she may apply for the same and we will transfer the cases pending in Delhi to Muzaffar Nagar. Merely because the petitioner is a lady does not mean she cannot travel to Muzaffar Nagar. At the highest she can be paid expenses for travel and stay. We, therefore, direct that the respondent shall pay to the petitioner and a companion travel and stay expenses on every occasion that the petitioner is required to go to Muzaffar Nagar. The Court at Muzaffar Nagar shall ensure that such payment is made to the petitioner on every occasion.” She prays to dismiss the petition. 7. In view of rival submissions, the point that emerges for consideration before this Court is:- Whether there are any grounds to consider the request of the petitioner to transfer H.M.O.P. No.97 of 2021 on the file of II Additional Senior Civil Judge Court, Ongole, Prakasam District to Family Court, Visakhapatnam? 8. Before going to the merits of the case, it would be beneficial to quote Section 24 of CPC, which reads as under: “24. 8. 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, 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 an 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”. 9. A plain reading of Section 24 of the Civil Procedure Code, which makes it clear that this Court can transfer any suit or proceedings from one Court to another Court after considering the convenience and inconvenience of both sides. 9. A plain reading of Section 24 of the Civil Procedure Code, which makes it clear that this Court can transfer any suit or proceedings from one Court to another Court after considering the convenience and inconvenience of both sides. It is no doubt true that it is consistent view of Hon’ble Apex Court 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 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 the husband. 10. In the present case, at the first instance, petitioner herself filed divorce petition on the file of II Additional Senior Civil Judge Court, Ongole, by showing her residential address as she is the resident of Basavannapalem, Maddipadu Mandal, Prakasam District with her aadhar number as per procedure laid down under law. She has also shown the residential address of the respondent as he is resident of Nippatlapadu Village of Prakasam District. Admittedly, respondent is working as Software Engineer in Wipro Company at Bangalore, who also filed petition seeking restitution of conjugal rights in O.P. No.49 of 2020 on the file of Senior Civil Judge Court, Ongole, which was said to be allowed and thereafter petitioner came up with a petition seeking for divorce. 11. Now the contention of the petitioner is that due to their financial crisis, herself and her mother have shifted to Visakhapatnam where they are staying in their relative’s house and now, they are living at the mercy of their relatives due to that, it is difficult for her to attend the Court at Ongole. When the petitioner herself filed petition seeking divorce before II Additional Senior Civil Judge Court, Ongole, Prakasam District, showing her address as she is resident of Prakasam District and inspite of her present position, might have been shifted to Visakhapatnam, that itself is not a ground to consider her request to transfer the case when already husband has instituted restitution of conjugal rights petition before II Additional Senior Civil Judge Court, Ongole where he said to be got the decree. Even respondent is said to be working at Bangalore at the time of petitioner filing petition seeking for divorce before Senior Civil Judge Court, Ongole and now she said to be filed DVC case at Visakhapatnam, though, she lodged report before SHO, Disha Police Station at Ongole. 12. After considering the facts and circumstances of the case, as criminal case filed by the petitioner is also pending at Ongole, when respondent admittedly working at Bangalore, it is not a fit case to consider the request of the petitioner to transfer the divorce petition filed by her before Senior Civil Judge Court, Ongole to Family Court, Visakhapatnam. There are no grounds to consider the request of the petitioner to transfer the case. 13. In the result, Transfer Civil Miscellaneous Petition is dismissed. The learned Senior Civil Judge, Ongole shall not insist physical presence of petitioner and also respondent before the Court in H.M.O.P. No.97 of 2021, except during the course of enquiry or at the time of recording her evidence before the Court. The learned Senior Civil Judge, Ongole is directed to explore the possibility of amicable settlement of disputes between the parties through counselling or conciliation as per the procedure laid down under law and also directed to dispose of H.M.O.P. No.97 of 2021 as expeditiously as possible within a period of one (01) 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, stand closed. The interim stay, if any, granted, shall stand vacated.