Allowed

Ashwini W/O Dwarkesh Alias Benakesh v. Dwarkesh Alias Benakesh S/O Hulagappa

Karnataka HC20 Oct 2022CP/100121/2022

Case brief

AI extract

What is this about?

Petitioner wife filed a civil petition under Section 24 CPC seeking transfer of a restitution of conjugal rights petition from Ranebennur to Family Court, Hubballi due to distance, expense, and safety concerns. The High Court allowed the petition, directing transfer based on the wife's convenience.

What did the court decide?

Transfer of M.C.No.11/2022 from Principal Senior Civil Judge, Ranebennur, to Court of I Addl. Principal Judge, Family Court, Hubballi.

Ashwini W/O Dwarkesh Alias Benakesh Vs Dwarkesh… — 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 20^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.100121 OF 2022

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BETWEEN:

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SMT.ASHWINI W/O DWARKESH @ BENAKESH MEDHAR, AGED ABOUT 27 YEARS, OCC: HOME MANANGEMENT, R/A H.NO.41/A, TIMMASAGAR ROAD, CHAWAN PLOT, NEKAR NAGAR, OLD HUBBALLI, HUBBALLI-580024.

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…PETITIONER

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(BY SRI. S.S.NIRANJAN, ADVOCATE.)

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AND:

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DWARKESH @ BENAKESH S/O. HULAGAPPA MEDHAR, AGE: ABOUT 29 YEARS, OCC: BUSINESS, R/O: HALAGERI ROAD, GANESH NAGAR, 1^ST CROSS, RANEBENNUR-581115.

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…RESPONDENT

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(BY SRI. PRAKASH R. BADIGER, ADVOCATE.)

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THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO WITHDRAW THE M.C.NO.11/2022, PENDING ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, RANEBENNUR, DIST: HAVERI AND TRANSFER TO THE COURT OF I ADDL. PRL. JUDGE, FAMILY COURT, HUBBALLI.

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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 S.S.Niranjan, learned counsel for petitioner and

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Shri Prakash R. Badiger, learned counsel for respondent, have appeared in person.

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The petition is listed for admission after notice to respondent. With the consent of learned counsel 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 08.05.2019 at Nehru Market Vartakara Sanghada Kalyanamantap, Ranebennur, as per the Customs and rituals prevailed in their Community. They lived blissfully for some time. Due to difference of opinion and misunderstanding, the respondent was constrained to file a petition seeking restitution of conjugal rights before the Principal Senior Civil Judge & JMFC, Ranebennur, in M.C.No.11/2022.

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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.11/2022 from the Court of Principal Senior Civil Judge & JMFC, Ranebennur to the Court of I Addl. Principal Judge, Family Court, Hubballi.

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Sri S.S.Niranjan, learned counsel for petitioner submits that the petitioner is residing at Hubballi and her husband has filed the petition for restitution of conjugal rights before the Principal Senior Civil Judge & JMFC, Ranebennur.

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Next, he submitted that the petitioner is not able to go to Ranebennur 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 Ranebennur 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 minor son.

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

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Lastly, she submitted that the grounds urged for transfer may be taken into consideration and the case may be transferred from the Court of Principal Senior Civil Judge & JMFC, Ranebennur to the Court of I Addl. Principal Judge, Family Court, Hubballi.

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Sri Prakash R. Badiger, learned counsel appearing

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on behalf of respondent has submitted that the petitioner has not made out any good ground to transfer the petition. The counsel further urged that the respondent is earning livelihood by doing coolie work. Hence, if the petition is transferred to the Court at Hubballi, he may lose his livelihood. Hence, he submits that it is not possible for the husband to travel all the

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way from Ranebennur to Hubballi, if the case is transferred. Accordingly he prays for dismissal of the petition.

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Heard the contentions urged on behalf of

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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.11/2022 pending on the file of Principal Senior Civil Judge, Ranebennur, be transferred to the Court of I Addl. 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 08.05.2019 at Nehru Market Vartakara Sanghada Kalyanamantap, Ranebennur, as per the Customs and rituals prevailed in their Community. 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

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respondent has filed a petition in M.C.No.11/2022 wherein he has sought the aid of the Court seeking restitution of conjugal rights. He has chosen the Forum of Principal Senior Civil Judge, Ranebennur. 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 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 along with minor child,

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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

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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 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 Ranebennur.

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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 Ranebennur 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.11/2022 pending on the file of Principal Senior Civil Judge & JMFC, Ranebennur to the Court of I Addl. 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 of M.C.No.11/2022, on the file of Principal Senior Civil Judge & JMFC, Ranebennur, to the Court of I Addl. Principal Judge, Family Court, Hubballi.

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Sd/JUDGE

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MRK

Ashwini W/O Dwarkesh Alias Benakesh v. Dwarkesh Alias Benakesh S/O Hulagappa

Case brief

What is this about?

What did the court decide?

Ashwini W/O Dwarkesh Alias Benakesh v. Dwarkesh Alias Benakesh S/O Hulagappa

Case brief

What is this about?

What did the court decide?

What the court decided

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