Allowed

Smt. Manjula W/O. Suresh Kodi v. Suresh S/O Yallappa Kodi

Karnataka HC17 Oct 2022CP/100018/2022

Case brief

AI extract

What is this about?

Challenging a divorce petition filed in Dharwad, the wife sought transfer to Badami due to distance and financial constraints. The High Court, considering the wife's convenience in matrimonial disputes, allowed the transfer of the family court case.

What did the court decide?

The Family Court at Dharwad was directed to transfer M.C. No. 289/2021 to the Court of Senior Civil Judge and JMFC, Badami.

Smt. Manjula W/O. Suresh Kodi Vs Suresh S/O… — Matrimonial and Divorce | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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CIVIL PETITION NO.100018 OF 2022

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BETWEEN:

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SMT.MANJULA W/O SURESH KODI, AGE:36 YEARS, OCC:HOUSEHOLD WORK, R/O SAI NAGAR, NEAR POSTAL RESIDENTIAL BUILDING, NEAR TOWER, BADAMI, DIST:BAGALKOT – 587 201. …PETITIONER (BY SRI S.C.HIREMATH, ADVOCATE)

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AND:

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SURESH S/O YALLAPPA KODI, AGE:42 YEARS, OCC:COOLIE, R/O ATMANAND NAGAR, BEHIND NEW BUS STAND, MEHABOOB NAGAR, DHARWAD – 580 008. …RESPONDENT

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(NOTICE TO RESPONDENT IS HELD SUFFICIENT)

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THIS CP IS FILED UNDER SECTION 24 OF THE CODE OF CIVIL PROCEDURE, 1908, TO TRANSFER THE M.C.NO.289/2021, FAMILY COURT, DHARWAD TO SENIOR CIVIL JUDGE AND JMFC, BADAMI.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.S.C.Hiremath., learned counsel for petitioner has appeared in person.

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Though notice is served, respondent has remained unrepresented.

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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 performed on 07.03.2008. From the wedlock, they have two children i.e., a daughter and a son.

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They lived blissfully for some time. Due to difference of opinion and misunderstanding, the respondent was constrained to file a Divorce petition before the Family Court, Dharwad in M.C.No.289/2021.

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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.289/2021

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from the Court of Family Judge, Dharwad to the Court of Senior Civil Judge and JMFC, Badami.

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Sri.S.C.Hiremath., learned counsel for petitioner

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submits that the petitioner is residing at Badami in Bagalkot District and her husband has filed the divorce petition before the Family Court at Dharwad.

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Next, he submitted that the petitioner is not able to go to Dharwad to attend the case which is quite a distance 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 Dharwad 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 and children. She is compelled to attend the Court at Dharwad.

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Learned counsel vehemently contended that petitioner is a helpless lady and she is not in a position to travel to Dharwad 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 Family Court at Dharwad to the Court of Senior Civil Judge and JMFC, Badami.

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Heard the contentions urged on behalf of petitioner

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and perused the petition paper with care.

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The short question which would arise for

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consideration is whether the case in M.C.No.289/2021 pending

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on the file of Family Court at Dharwad be transferred to the Court of Senior Civil Judge and JMFC, Badami?

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It is not in dispute that petitioner and respondent are husband and wife. Their marriage was performed on 07.03.2008. From the wedlock, they have two children i.e., a daughter and a son. They lived blissfully for some time. Due to difference of

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opinion 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.289/2021 wherein he has sought the aid of the Court seeking decree of divorce. He has chosen the Forum of Family Court at Dharwad. 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 Dharwad 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, having minor children,

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Threat to life,

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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 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 Badami. 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 Dharwad.

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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 Badami. Therefore, it is not appropriate for this Court to direct her to attend the proceedings at Dharwad Court.

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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.289/2021 pending on the file of Family Court at Dharwad to the Court of Senior Civil Judge and JMFC, Badami.

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In the result, the Civil Petition succeeds and it is accordingly allowed .

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This Court directs to transfer M.C.No.289/2021 pending on the file of Family Court at Dharwad to the Court of Senior Civil Judge and JMFC, Badami.

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Sd/JUDGE

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TKN

Smt. Manjula W/O. Suresh Kodi v. Suresh S/O Yallappa Kodi

Case brief

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Smt. Manjula W/O. Suresh Kodi v. Suresh S/O Yallappa Kodi

Case brief

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What did the court decide?

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