Allowed

Smt. Chakka Uma Kameswari Devi, v. Chakka Veera Venkata Satya Jala Siva

Andhra Pradesh HC17 Feb 2022TRCMP/53/2021

Case brief

AI extract

What is this about?

Transfer Civil Miscellaneous Petition allowed. The High Court ordered transfer of a divorce petition (O.P.) from one Principal Senior Civil Judge's court to another Principal Senior Civil Judge's court to be tried along with a restitution case. The court relied on Supreme Court precedents emphasizing wife's convenience and the avoidance of conflicting judgments, finding no bar on inter-Civil Court

What did the court decide?

O.P. No.127 of 2019 withdrawn from Rajamahendravaram and transferred to Kovvur to be tried suo motu with HMOP No.130 of 2019.

Smt. Chakka Uma Kameswari Devi, Vs Chakka… — Matrimonial and Divorce | Andhra Pradesh HC (2022)

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HONOURABLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI TRANSFER CIVIL MISCELLANEOUS PETITION No.53 of 2021

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ORDER:

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This transfer civil miscellaneous petition is filed seeking to withdraw O.P.No.127 of 2019 on the file of the Principal Senior Judge at Rajamahendravaram, East Godavari District and to transfer the same to the file of the Principal Senior Civil Judge, Kovvur, West Godavari District and to try along with HMOP No.130 of 2019.

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The case of the petitioner is that she is the wife of the respondent and their marriage was celebrated on 01.03.2018 at Nidadavole as per Hindu rites and customs. They set up their family at Katheru. On 11.03.2019, the petitioner was sent back to her parents house. Hence, she filed HMOP No.130 of 2019 on the file of the Court of learned Principal Senior Civil Judge, Kovvur, West Godavari District, for restitution of conjugal rights on 19.06.2019. After service of summons, on the first date of hearing i.e. on 18.07.2019, the respondent appeared and is attending the Court at Kovvur, whenever his presence is required. As the petitioner is not having any source of income, she filed M.C.No.15 of 2019 on the file of the learned Judicial First Class Magistrate at Nidadavole, West Godavari District, against the respondent, for maintenance and the same is pending. The respondent also filed O.P.No.127 of 2019 on the file of the Court of learned Principal Senior Civil Judge, Rajamahendravaram, East Godavari District, seeking divorce. Though the parents house of the petitioner is located at D.Muppavaram, the petitioner has to change two buses to reach Rajamahendravaram. The respondent got an ex parte order in the said O.P. on 11.12.2020. Immediately, when she came to know the same, she

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filed I.A.Nos.309 and 310 of 2020 seeking to set aside the same. The said applications were allowed on 28.01.2021. The petitioner does not have any independent source of income to attend the Court at Rajamahendravaram. The respondent is getting a salary of about Rs.1,00,000/-p.m. If both the cases are tried in different Courts, there is possibility of conflicting decisions in the matters. Hence, Tr.C.M.P.

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When Tr.C.M.P. came up for admission on 20.03.2021, this Court granted interim stay of all further proceedings in O.P.No.127 of 2019 on the file of the Court of learned Principal Senior Civil Judge, Rajamahendravaram, East Godavari District, until further orders. 4. Learned counsel for the petitioner filed proof of service along with a memo evidencing acknowledgment of notice sent to the respondent. However, none appears for the respondent and there is no representation on his behalf. 5. The number of divorce and related matters are increasing day by day for various reasons and in such matters both the spouses may face genuine difficulties. The spouse against whom the transfer proceeding is instituted would face hardship and inconvenience by being required to commute to a distant court, while the spouse who has instituted the original proceeding may genuinely suffer grave inconvenience if the proceeding is transferred to a distant court within whose jurisdiction the other spouse resides. Hence, the transfer matters have to be decided basing on the facts of each case.

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In Bhuwan Mohan Singh v. Meena¹ , the Hon‟ble Supreme Court referred to the decision in „ K.A. Abdul Jaleel vs. T.A.Shahida² and laid stress on securing speedy settlement of disputes relating to marriage and

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1 ‘((2015) 6 SCC 353

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2 ‘(2003) 4 SCC 166

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family affairs. The Hon‟ble Supreme Court in the said case held as

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follows:

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“It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow.”

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7. In Shamima Farooqui v. Shahid Khan³ , the Hon‟ble Supreme

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Court held as follows:

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“When the aforesaid anguish was expressed, the predicament was not expected to be removed with any kind of magic. However, the fact remains, these litigations can really corrode the human relationship not only today but will also have the impact for years to come and has the potentiality to take a toll on the society. It occurs either due to the uncontrolled design of the parties or the lethargy and apathy shown by the Judges who man the Family Courts. As far as the first aspect is concerned, it is the duty of the courts to curtail them. There need not be hurry but procrastination should not be manifest, reflecting the attitude of the court. As regards the second facet, it is the duty of the court to have the complete control over the proceeding and not permit the lis to swim the unpredictable grand river of time without knowing when shall it land on the shores or take shelter in a corner tree that stands “still” on some unknown bank of the river. It cannot allow it to sing the song of the brook. “Men may come and men may go, but I go on forever.” This would be the greatest tragedy that can happen to the adjudicating system which is required to deal with most sensitive matters between the man and wife or other family members relating to matrimonial and domestic affairs. There has to be a proactive approach in this regard and the said approach should be instilled in the Family

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3 ‘(2015) 5 SCC 705

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Court Judges by the Judicial Academies functioning under the High Courts. For the present, we say no more.”

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In Vandana Sharma v. Rakesh Kumar Sharma⁴ , the Hon‟ble Supreme Court taking note of the fact that the wife had two minor daughters and appreciating the difficulty, thought it appropriate to transfer the case.

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In Neelam Bhatia vs. Satbir Singh Bhatia⁵ , the Hon‟ble Supreme Court, when the wife sought transfer of a case and husband resisted the petition stating that the case is at the stage of evidence and pleadings were also completed, declined to transfer the case and directed the husband to bear the to-and-fro travelling expenses of the wife and one person accompanying her by train whenever she actually appeared before the Court. The Hon‟ble Supreme Court also directed payment of incidental expenses on the date of hearing in addition to the train fare. 10. In Sumita Singh Vs. Kumar Sanjay⁶ , when the wife sought transfer of a case filed by the husband on the ground that she is unable to travel up and down from Delhi to Ara, to defend the matrimonial proceedings and that she has no one with whom she can stay in Ara because her parents are residents of Gurgaon; even though wife is an educated woman and doing very well and husband is unemployed Hon‟ble Supreme Court held that it is the wife‟s convenience that must be looked at and the circumstances indicated are sufficient to allow the transfer petition.

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In Sangeeta Alias Shreya vs. Prasant Vijay Wargiya⁷ , wife filed transfer petition on the ground that she has 2½ years old child, that she has no source of income, and that the wife is not in a position to travel alone. The husband therein took a plea that he has no income and he is

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4 ‘(2008) 11 SCC 768

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5 ‘(2004) 13 SCC 436

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6 (2001) 10 SCC 41

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7 2004 13 SCC 407

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apprehending threats to his life and liberty if he is made to go to Kota,

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Rajasthan, the place where wife is seeking transfer of matrimonial case.

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In the said case the Hon‟ble Supreme Court held as follows:

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“We are still living in a civilised society. We see no substance in the submission that there would be danger to his life if he attends the Court at Kota and if any threat is given, the respondent can always complaint to that Court and we are sure that his, if one made, will be considered on its merit. Between a husband and a wife, the convenience of the wife must prevail particularly when the wife has a 2½ years old child”.

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As seen from the pleadings, the petitioner does not have any independent source of income to attend the Court at Rajamahendravaram and the respondent is getting a salary of about Rs.1,00,000/-p.m. Further, if both the cases are tried in different Courts, there is a possibility of conflicting decisions in the matters.

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In Kaligithi Priyanka v. Javudula Rajeev Gandhi (Tr.CMP No.58 of 2019, dated 18.12.2019), the issue that fell for consideration was „whether a matrimonial dispute pending before a Civil Court of competent jurisdiction be transferred to Family Court or vice-versa in terms of Section 24 CPC?‟, and this Court held as follows.

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“7. In as much as, the respondent did not choose to contest the matter, the reasons so assigned by the petitioner have to be taken into consideration, since they remained uncontroverted. However, difficulty felt in considering the request of the petitioner, on account of the judgment of one of the learned Judges of this Court in Chakradharamahanthi Venkata Maikya Prasuna v. C.Venkata Rama Murthy and batch of cases (2019(2)ALT 1). Certain guidelines are settled in the above ruling, after elaborate discussion of effect of Section 24 CPC, various precedents, different provisions of Family Court Act, including constitutional provisions, as to access to justice, fair trial and certain international covenants, which have bearing visa-vis judicial proceedings. Constitutional provisions have been invited into the arena of family disputes in this ruling. Nonetheless, the observations, so recorded, in the above ruling of this court since have certain bearing in the matters,

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particularly, in the interests of posterity, it is now being discussed hereunder.

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One of the guidelines in the above ruling is that, matrimonial cases pending on the file of Judge, Family Court, shall not be withdrawn and transferred to the Court of Senior Civil Judge, as the jurisdiction of the civil Court is ousted by Section 8 of the Family Courts Act.

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Power of this Court in terms of Section 24 CPC is exhaustively considered in the above ruling, particularly, in Para-100, observing that the family Court is a court subordinate to High Court and that the power of the High Court to transfer a proceeding from the Family Court to any other District Court or from the District Court to the Family Court cannot be said to have been excluded or restricted. Thus, it is stated that the power of High Court in terms of Section 24 CPC to transfer matrimonial proceedings is, to transfer from one family Court to another family Court or from Family Court to District court or from District Court to Family Court. Transfer of matrimonial cases from the family court to a civil court having such jurisdiction held impermissible. Basis for such conclusion in this ruling, is the hierarchal differentiation of the Court of Family Judge and other equally competent Court viz., the Senior Civil Judge. In the sense, the cadre to which the presiding officer of family Court being a District Judge is considered attaching significant importance and the Court of Senior Civil Judge, where, the presiding officer, usually, is a Senior Civil Judge, who is inferior to the cadre of District Judge. The provisions of Family Court Act, which govern functioning of family Court, are also considered in this ruling, pointing out that, they stand differently than what the courts of Senior Civil Judges follow procedurally, in the matrimonial disputes.

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However, it appears that earlier ruling of this Court when at Hyderabad in V. Sailaja vs. V. Koteswara Rao (2003(1) ALD, 673), in the same context, was not brought to the notice of the learned Judge. This ruling, in turn, relied on earlier decision of this court in P.Jayalakshmi vs. K. Revichandran (AIR 1992 AP 190). There is also elaborate discussion in Sailaja‟s case, referred to supra, in respect of jurisdiction of family Court vis-à-vis a Court of ordinary civil Jurisdiction, conferred with jurisdiction to decide the matrimonial matters. It is desirable to extract

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hereunder the relevant observations in Sailaja‟s case, for benefit, in Paras-13 to 16.

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“13. On a plain reading of the provisions of Sections 7 and 8 of the Family Courts Act, it is clear that in respect of the matters which are enumerated in the Explanation to Section 7, the Family Court shall exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court. The Family Court shall also exercise the jurisdiction of the Magistrate of I Class in respect of a proceeding for maintenance filed under Chapter IX of the Code of Criminal Procedure, 1973. While so, Section 8 of the Act excludes the jurisdiction of Civil Courts/Magistrates of I Class in such of the Districts where Family Courts are constituted under the Family Courts Act.

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14. On a careful reading of the language used in Section 8, I am of the opinion that the exclusion contemplated under Section 8 of the Act is only limited to the Districts where a Family Court is already constituted under the Family Courts Act, in which case, the jurisdiction of the Civil Courts in such Districts in respect of the matters which are mentioned in the Explanation to Section 7 of the Family Courts Act gets ousted. But, in places where Family Court is not constituted, then the said exclusion contemplated under Section 8 is not applicable to the Civil Courts which are functioning in such places. In such cases, the local Civil Courts will continue to exercise the jurisdiction in respect of all matrimonial matters.

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15. Coming to the power of the High Court under Section 24 C.P.C., as already stated, the High Court has got unquestionable power to transfer cases from one Court to the other Court. Similarly, as the Family Court is also a Court subordinate to the High Court and is subject to the provisions of the Code of Civil Procedure, the High Court is empowered under Section 24 of the C.P.C. to transfer cases from one Family Court to the other Family Court.

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16. But, the question in this case is whether this Court can transfer a case from the file of a Family Court to a Civil Court. As already stated, in the absence of constitution of a Family Court, the Civil Court is empowered to exercise jurisdiction in respect of matrimonial cases, by virtue of the provisions of Section 8. Therefore, in places where Family Court is not established, as the local Courts are vested with the jurisdiction to deal with matrimonial cases, such local Courts are competent to try the matrimonial cases of the nature which are mentioned in the Explanation to Section 7 of the Family Courts Act. In such a case, there may not be any bar under Section 8 of the C.P.C. from transferring the cases pending in a Family Court to such Civil Courts. Therefore, this Court in exercise of its jurisdiction under Section 24 of the C.P.C., can transfer cases which are instituted in a Family Court to the Courts within whose local jurisdiction no Family Court is constituted.”

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A reference is also made to the observations in P.Jaya Lakshmi vs. K. Revichandran referred above in para-17 of this ruling and, they are:

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“17. ………..

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"Section 8 lays down that where a Family Court has been established for any area, no District Court or Subordinate Civil Court will have or exercise any jurisdiction in respect of any suit proceeding of the nature referred to in the explanation to Subsection (1) of Section 8. Under Clause (b), the Magistrates in that area will cease to have jurisdiction regarding matters governed by Chapter IX of Cr.P.C. It is significant to remember that the exclusion of jurisdiction is limited to the area for which the Family Court is constituted. The words used are 'such area'. In view of the wording of Section 8 the exclusion of jurisdiction for the Civil and Criminal Court is confined to area for which Family Court is constituted and there are no words indicated that the parties to that proceedings are prohibited from approaching any other Court outside the jurisdiction of the Family Court. Section 20 of Family Courts Act indicate that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any law for the time being in force or any instrument having effect by virtue of any law other than this Act.

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A harmonious interpretation of Sections 3, 7, 8 and 20 clearly indicates that there is no bar against the parties from approaching other Courts outside the jurisdiction of the Family Court. The exclusion of the jurisdiction of the Courts is confined to the area over which the Family Court exercises jurisdiction...."

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For the foregoing reasons, I see no merit in the contention advanced on behalf of the respondent.”

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When there are courts, equally competent to consider and determine the matrimonial disputes, which have jurisdiction either under Hindu Marriage Act or any other law applicable it is rather difficult to draw any such distinction only on the premise of hierarchal differentiation among the cadres of the presiding officers manning either the family Court or the court of ordinary civil jurisdiction conferred with matrimonial jurisdiction.

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In the light of this situation when right to justice is of primordial consideration, when a party requests transfer of his/her matter either from the Family court to court of ordinary civil jurisdiction, enjoying equal competence and efficacy similarly to apply the same provisions of substantive and procedural laws, it cannot be stated that such request shall be confined to a Court of equal status in hierarchal system prevalent in the State or in the country.

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In this respect, I prefer to rely on the observations in Sailaja‟s case referred to supra than CVM prasuna’s case referred to above.

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Therefore, on such basis, when the facts in this case are considered, it is just and appropriate that O.P.No.973 of 2018 pending on the file of the Court of learned Additional Family

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Judge, Visakhapatnam be transferred to the Court of learned Senior Civil Judge, Bhimavaram. Interests of justice also warrant this course of action.

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In the result, the Tr.CMP is allowed. O.P.No.973 of 2008, now pending on the file of the court of learned Additional Family Judge, Visakhapatnam, is withdrawn and is transferred to the Court of learned Senior Civil Judge, Bhimavaram for disposal in accordance with law. No costs.”

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In the light of the said judgment, there is no bar in transferring the case to the Court of the Principal Senior Civil Judge, Kovvur.

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In view of the facts and circumstances and in the light of the above referred judgments of the Hon‟ble Supreme Court and this Court, O.P.No.127 of 2019 is withdrawn from the file of the Court of learned Principal Senior Judge at Rajamahendravaram, East Godavari District, and the same is transferred to the file of the Court of learned Principal Senior Civil Judge, Kovvur, West Godavari District to try along with HMOP No.130 of 2019. The trial Court is directed not to insist upon the appearance of respondent on every adjournment except on the date when his appearance is necessary for disposal of the case.

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