Allowed

Smt Ruksana W/O Aslam Attar v. Aslam S/O Babu Attar

Karnataka HC12 Dec 2022CP/100138/2022

Case brief

AI extract

What is this about?

This judgment allows a transfer petition under Section 24 CPC seeking to move a matrimonial suit from Principal Judge, Family Court, Hubballi to Civil Judge, Senior Division, Gokak. The court ruled in favor of the petitioner wife considering her residence, financial constraint to travel, and established legal priority of the wife's convenience in transfer matters.

What did the court decide?

O.S.No.06/2022 pending before Principal Judge, Family Court, Hubballi is transferred to the Court of Civil Judge, Senior Division, Gokak.

Smt Ruksana W/O Aslam Attar Vs Aslam S/O Babu Attar — 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 12^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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CIVIL PETITION NO.100138 OF 2022

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BETWEEN:

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SMT. RUKSANA W/O ALSAM ATTAR AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: C/O: SHAHANAZ WAZID RAJANNAVAR LOLASUR, TQ: GOKAK, DIST: BELAGAVI-591218. (BY SRI. KIRAN KUMAR S. CHATTIMATH FOR SRI DINESH M. KULKARNI , ADVOCATE)

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…PETITIONER

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AND:

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ASLAM S/O BABU ATTAR AGE: 37 YEARS, OCC: NIL, R/O: HOUSE NO.90, TAJ NAGAR MASJID, HUBBALLI ENGLISH COLLEGE, HUBBALLI-580020. (BY SRI. SACHIN C. ANGADI FOR AVINASH M. ANGADI, ADVOCATE)

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…RESPONDENT

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THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF THE CODE OF CIVIL PROCEDURE, 1908, SEEKING TO WITHDRAW THE CASE O.S.NO.06/2022, PENDING BEFORE PRL. JUDGE, FAMILY COURT, HUBBALLI, DIST. DHARWAD AND TRANSFER THE CASE TO THE COURT OF CIVIL JUDGE, SENIOR DIVISION, GOKAK.

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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 Kirankumar S. Chattimath, learned counsel on behalf of Sri Dinesh M. Kulkarni, for petitioner and Sachin C. Angadi, learned counsel on behalf of Sri Avinash M. Angadi, 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 18.05.2009 at Gokak as per Muslim rites and customs. From wedlock, they have three minor daughters. They lived blissfully for some time. Due to difference in opinions and misunderstandings, the respondent was constrained to file a suit seeking dissolution of marriage before the Principal Judge, Family Court, Hubballi, in O.S.No.06/2022.

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Aggrieved by the institution of the suit, the petitioner wife has filed this petition under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of case in O.S.No.06/2022

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from the Court of Principal Judge, Family Court, Hubballi, to the Court of Civil Judge, Senior Division, Gokak.

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Sri Kirankumar Chattimath, learned counsel for the petitioner submits that the petitioner is residing in Lolasur, a remote village in Gokak taluk of Belagavi district and her husband has filed the suit for dissolution of marriage before the Principal Judge, Family Court, Hubballi.

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Next, he submitted that the petitioner is not able to go to Hubballi, to attend the case which is quite a distance (120 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 Hubballi 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 the minor children.

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Learned counsel vehemently contended that petitioner is a helpless lady and she is not in a position to travel to Hubballi 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 Principal Judge, Family Court, Hubballi, to the Court of Civil Judge, Senior Division, Gokak.

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Sri Sachin Angadi, learned counsel for the respondent has vehemently contended that the petitioner has not made out any good grounds to transfer the case. Counsel 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 consideration is whether the case in O.S.No.06/2022 pending

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on the file of Principal Judge, Family Court, Hubballi be transferred to the Court of Civil Judge, Senior Division, Gokak?

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It is not in dispute that petitioner and respondent are husband and wife. Their marriage was solemnized on 18.05.2009 at Gokak, as per Muslim rites and customs. From the wedlock, they have three minor daughters. They lived blissfully for some time. Due to difference in opinions and misunderstandings, 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 suit in O.S.No.06/2022, wherein he has sought the aid of the Court seeking dissolution of marriage. He has chosen the Forum of Principal Judge, Family Court, Hubballi. 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

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petitioner, the Court at Gokak 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 with three minor children,

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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

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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 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

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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 in Lolasur, a remote village in Gokak taluk. 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 Hubballi.

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As already noted above, whenever Courts are called upon to consider the plea of transfer in matrimonial matter,

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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 Gokak. Therefore, it is not appropriate for this Court to direct her to attend the proceedings at Hubballi 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 O.S.No.06/2022 pending on the file of Principal Judge, Family Court, Hubballi, to the Court of Civil Judge, Senior Division, Gokak.

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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 O.S.No.06/2022 pending on the file of Principal Judge, Family Court, Hubballi, to the Court of Civil Judge, Senior Division, Gokak.

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If video conferencing provision is available, the

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respondent is at liberty to appear through video conferencing.

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Sd/JUDGE

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MRK

Smt Ruksana W/O Aslam Attar v. Aslam S/O Babu Attar

Case brief

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Smt Ruksana W/O Aslam Attar v. Aslam S/O Babu Attar

Case brief

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