Allowed

Smt. Shital Laxmi v. Harishankar S/O Ningappa Hittalamani

Karnataka HC7 Nov 2022CP/100016/2022

Case brief

AI extract

What is this about?

This order in a Civil Petition filed under Section 24 CPC allowed the transfer of a divorce case from the Senior Civil Judge, Saundatti to the Court at Banahatti. The Court held that considering the petitioner's residence, lack of funds for travel, and safety concerns, transfer was just and proper in matrimonial matters.

What did the court decide?

Transfer of M.C.No.63/2021 from Senior Civil Judge, Saundatti to Senior Civil Judge and JMFC, Banahatti.

Smt. Shital Laxmi Vs Harishankar S/O Ningappa… — Service and Employment | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 07^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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CIVIL PETITION NO.100016 OF 2022

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BETWEEN:

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SMT. SHITAL @ LAXMI W/O HARISHANKAR HITTALAMANI, AGED ABOUT: 31 YEARS, OCCN: HOUSEHOLD WORK, R/O: C/O: SURESH S/O DYAVAPPA TAIL R/O: : BRAHMANAND NAGAR, RABAKAVI-587311, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOTE. (BY SRI. PRASHANT S. KADADEVAR, ADVOCATE)

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…PETITIONER

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AND:

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HARISHANKAR S/O NINGAPPA HITTALAMANI AGED ABOUT: 39 YEARS, OCC: AGRICULTURE, R/O: HULIKATTI-591109, TQ: SAUNDATTI, DIST: BELAGAVI. …RESPONDENT (BY SRI P.V. GUNJAL, ADVOCATE)

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THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF THE CODE OF CIVIL PROCEDURE, 1908, SEEKING TO TRANSFER M.C.NO.63/2021 PENDING OF FILE OF THE SENIOR DIVIISON CIVIL JUDGE, SAUNDATTI TO SENIOR CIVIL JUDGE AND JMFC, BANAHATTI. THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.Prashant S.Kadadevar., learned counsel for petitioner and Sri.P.V.Gunjal., learned counsel for respondent have appeared in person.

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The facts are quite simple and are stated as under:

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It is stated that the Petitioner and respondent are husband and wife and their marriage was solemnized on 30.06.2017 at Sri Kalika Temple, Sirasangi as per the tradition and custom. They lived blissfully for some time. Due to difference of opinion and misunderstanding, the respondent was constrained to file a petition seeking divorce before the Court of Senior Civil Judge, Saundatti in M.C.No.63/2021.

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Aggrieved by the institution of the petition, the petitioner wife has filed this petition under Section 24 of the Code of Civil Procedure, 1908, seeking transfer of case in M.C.No.63/2021 from the Court of Senior Civil Judge, Saundatti to the Court of Senior Civil Judge and JMFC, Banahatti.

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Sri.Prashant S.Kadadevar., learned counsel for

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petitioner submits that the petitioner is residing at Rabakavi – Banahatti, Bagalkot and her husband has filed the petition for divorce before the Court of Senior Civil Judge, Saundatti.

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Next, he submitted that the petitioner is not able to go to Saundatti to attend the case which is quite a distance (100 kilometers) from her place of residence.

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A further submission is made that it would be very difficult and inconvenient for the petitioner to go to Saundatti as and when the case is posted as the respondent has refused to maintain her and she is not able to meet the travelling expenses.

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It is also submitted that with a great difficulty she is maintaining herself.

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Learned counsel vehemently contended that petitioner is a helpless lady and she is not in a position to travel to Saundatti and contest the case.

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Lastly, he submitted that the grounds urged for transfer may be taken into consideration and the case may be transferred from the Court of Senior Civil Judge, Saundatti to the Court of Senior Civil Judge and JMFC, Banahatti.

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Sri.P.V.Gunjal., learned counsel for respondent vehemently contended that the petitioner has not made out any good grounds to transfer the petition. Counsel has urged several contentions and accordingly prayed for dismissal of the petition.

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Heard the contentions urged on behalf of respective parties and perused the petition paper with care.

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The short question which would arise for consideration is whether the case in M.C.No.63/2021 pending on the file of Senior Civil Judge, Saundatti be transferred to the Court of Senior Civil Judge and JMFC, Banahatti?

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It is not in dispute that petitioner and respondent are husband and wife. Their marriage was solemnized on 30.06.2017 at Sri Kalika Temple, Sirasangi as per the tradition and custom. They lived blissfully for some time. Due to difference of opinion

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and misunderstanding, petitioner was constrained to live apart from her husband - respondent.

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Due to conflicts and misunderstandings, parties have chosen to litigate the issues before the Court of Law. The respondent has filed a petition in M.C.No.63/2021 wherein he has sought the aid of the Court seeking divorce. He has chosen the Forum of Senior Civil Judge, Saundatti. But, the wife - petitioner has sought for transfer of the case.

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The question being whether there is some other Forum which is appropriate for the trial of the action. According to petitioner, the Court at Banahatti is the appropriate Forum to litigate the dispute. The grounds taken by wife in the transfer petition are;

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Travel is unsafe being a lady,

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Expenses required for travel,

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Inconvenience to travel,

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Hence, this petition under Section 24 of CPC.

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In this regard, it would be relevant to refer to Section 24 of the Code of Civil Procedure, 1908.

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"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, -

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(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

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(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it; and

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(i) try or dispose of the same; or

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(ii) transfer the same for trial or disposal to

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any Court subordinate to it and competent to try or dispose of the same; or

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(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn."

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The Section confers a general power to transfer, withdraw

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and transfer suits, appeals or other proceedings at any stage on the application of party. The purpose of Section 24 of CPC is

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merely to confer discretionary power. A Court acting under Section 24 of CPC may or may not in its judicial discretion transfer a particular case.

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It would be relevant to note that the basic principle governing the granting of a petition under Section 24 of 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.

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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.

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In the present case, it is not in dispute that the petitioner is residing at Rabakavi – Banahatti, Bagalkot. It is relevant to note that the petitioner has also pleaded that she is not able to meet the expenses of traveling to attend the case at Saundatti.

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As already noted above, whenever Courts are called upon to consider the plea of transfer in matrimonial matter, the Court must look into the convenience of the wife. She has specifically pleaded that it would be convenient for her to attend the case at Banahatti. Therefore, it is not appropriate for this Court to direct her to attend the proceedings at Saundatti Court.

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The law is also well settled by the Hon’ble Apex Court in this regard in N.C.V.AISHWARYA VS. A.S.SARAVANA KARTHIK SHA reported in AIR 2022 SC 4318 .

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Having regard to the facts and circumstances of the case, I am of the view that it is just and proper to transfer the M.C.No.63/2021 pending on the file of Senior Civil Judge, Saundatti to the Court of Senior Civil Judge and JMFC, Banahatti.

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In the result, the Civil Petition succeeds and it is

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accordingly allowed .

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This Court directs to transfer M.C.No.63/2021 on the file of Senior Civil Judge, Saundatti to the Court of Senior Civil Judge and JMFC, Banahatti.

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If video conferencing provision is available, the respondent

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is at liberty to appear through video conferencing.

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Sd/JUDGE

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TKN

Smt. Shital Laxmi v. Harishankar S/O Ningappa Hittalamani

Case brief

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Smt. Shital Laxmi v. Harishankar S/O Ningappa Hittalamani

Case brief

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