Allowed

Dr. Swetha W/O Sunil Mokashi D/O Ramachandra C v. Dr. Sunil S/O Hanumantappa Mokashi

Karnataka HC21 Oct 2022CP/100030/2022

Case brief

AI extract

What is this about?

Civil Petition filed by a wife seeking transfer of her pending divorce suit from Family Court, Vijayapura to Family Court, Hubballi. The Single Judge examined Section 24 CPC grounds including residence, safety, and travel expenses, and held transfer appropriate.

What did the court decide?

Transfer of M.C.No.295/2021 from Principal Judge Family Court, Vijayapura to Principal Judge Family Court, Hubballi.

Dr. Swetha W/O Sunil Mokashi D/O Ramachandra C Vs… — Matrimonial and Divorce | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 21^ST 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.100030 OF 2022

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BETWEEN:

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DR. SWETHA W/O SUNIL MOKASHI D/O RAMACHANDRA C. AGE: 33 YEARS, R/O: JAYAPRIYA EYE HOSPITAL, NO.2 ASHOK NAGAR ROAD, BAILAPPANAVAR NAGAR, HUBBALLI. NOW R/O: RENUKA NIWAS, KALLURU LAYOUT, VIDYANAGAR, OPP. NEW COUT COMPLEX, HUBBALLI-580020.

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…PETITIONER

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(BY SRI J.S.SHETTY, ADVOCATE)

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AND:

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DR. SUNIL S/O HAMUMANTAPPA MOKASHI AGE: 35 YEARS, R/O: NAVANAGAR, BAGALKOTE-587101, RESPONDENT FALSELY CLAIMED THAT HE IN R/O: JALANAGAR, VIJAYAPUR-586101, VIJAYAPUR.

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…RESPONDENT

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(BY SRI. N.V. DODAMANI, ADVOCATE.)

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THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF THE CODE OF CIVIL PROCEDURE, 1908, SEEKING THAT THE MATRIMONIAL CASE M.C.NO.295/2021, NOW PENDING BEFORE THE PRINCIPAL JUDGE, FAMILY COURT, VIJAYAPUR, MAY BE WITHDRAWN AND TRANSFERRED TO THE PRINCIPAL JUDGE FAMILY COURT AT HUBBALLI, FOR DISPOSAL IN ACCORDANCE WITH LAW.

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

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ORDER

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Sri.J.S.Shetty., learned counsel for petitioner and

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Smt.N.V.Dodamani., learned counsel for respondent have appeared in person.

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Though the petition is listed for admission, with the consent of learned counsel for respective parties, the petition is heard for final hearing.

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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 29.05.2015 at Veerabadreshwar Sankritika Bhavan, BVVS Campus, Bagalkot as per the Customs prevailing in their community. They lived blissfully for some time. Due to difference of opinion and misunderstanding, the respondent was constrained to file a divorce petition seeking divorce before the Principal Judge Family Court, Vijayapura in M.C.No.295/2021.

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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.295/2021 from the Principal Judge Family Court, Vijayapura to the Court of Principal Judge Family Court, Hubballi.

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Sri.J.S.Shetty., learned counsel for petitioner submits

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that the petitioner is residing at Hubballi and her husband has filed the petition for divorce before the Principal Judge Family Court, Vijayapura.

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Next, he submitted that the petitioner is not able to go to Vijayapura 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 Vijayapura 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 Vijayapura and contest the divorce 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 Principal Judge Family Court, Vijayapura to the Court of Principal Judge Family Court, Hubballi.

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Smt.N.V.Dodamani., learned counsel appearing on behalf of respondent vehemently contended that the petitioner has not made out any good grounds to seek transfer of the case. Counsel has urged several contentions and accordingly prayed for dismissal of the petition.

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Heard the contentions urged on behalf of the respective parties and perused the petition papers 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.295/2021 pending on the file of Principal Judge Family Court, Vijayapur be

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transferred to the Court of Principal Judge Family Court, Hubballi?

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It is not in dispute that petitioner and respondent are husband and wife. Their marriage was solemnized on 29.05.2015 at Veerabadreshwar Sankritika Bhavan, BVVS Campus, Bagalkot as per the Customs prevailing in their community. They lived blissfully for some time. Due to difference of 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.295/2021 wherein he has sought the aid of the Court seeking divorce. He has chosen the Forum of Principal Judge Family Court at Vijaypura. 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 Hubballi is the appropriate Forum to

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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

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

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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 Hubballi. It is relevant to note that the petitioner has also pleaded that petitioner is not able to meet the expenses of traveling to attend the case at Vijayapura.

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

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Having regard to the facts and circumstances of the case, I

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am of the view that it is just and proper to transfer the M.C.No.295/2021 pending on the file of Principal Judge Family Court, Vijayapura to the Court of Principal Judge Family Court, Hubballi.

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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.295/2021 on the file of Principal Judge Family Court, Vijayapura to the Court of Principal Judge Family Court, Hubballi.

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Sd/JUDGE

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TKN

Dr. Swetha W/O Sunil Mokashi D/O Ramachandra C v. Dr. Sunil S/O Hanumantappa Mokashi

Case brief

What is this about?

What did the court decide?

Dr. Swetha W/O Sunil Mokashi D/O Ramachandra C v. Dr. Sunil S/O Hanumantappa Mokashi

Case brief

What is this about?

What did the court decide?

What the court decided

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