Allowed

Smt. Chaitra (Shivaganga) W/O. Mylarappa Barker v. Sri. Mylarappa B Barker

Karnataka HC29 Oct 2022CP/100144/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a civil petition filed under Section 24 CPC seeking transfer of a divorce case from Gadag to Gangavathi. Considering the petitioner's residence, travel safety, expenses, and convenience, the court deemed it just and proper to transfer the case.

What did the court decide?

Transfer of M.C. No. 117/2020 from Principal Judge Family Court Gadag to Court of Civil Judge Senior Division Gangavathi allowed.

Smt. Chaitra (Shivaganga) W/O. Mylarappa… — Pension and Retirement Benefits | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 29^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.100144 OF 2022

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BETWEEN:

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SMT.CHAITRA (SHIVAGANGA) W/O MYLARAPPA BARKER, AGE:24 YEARS, OCC:HOUSEHOLD WORK, R/O BASAPATTANA, TAL.GANGAVATI, DIST:KOPPAL – 583 227.

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…PETITIONER

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(BY SRI.A.R.PATIL, ADVOCATE)

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AND:

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SRI MYLARAPPA B.BARKER, AGE:30 YEARS, OCC:COOLIE BUILDING WORKS, R/O. NEELAGUNDA, TQ & DIST:GADAG – 583 213.

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…RESPONDENT

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(SERVED AND UNREPRESENTED)

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THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO TRANSFER M.C.NO.117/2020, FROM THE COURT OF PRINCIPAL JUDGE, FAMILY COURT, GADAG, TO THE COURT OF CIVIL JUDGE SENIOR DIVISION, GANGAVATHI, ETC.,.

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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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Shri A.R.Patil, 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 solemnized on 21.12.2018 in Neelagund village at Gadag taluk. 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 Principal Family Court at Gadag in M.C.No.117/2020.

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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.117/2020

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from the Court of Principal Judge, Family Judge, Gadag to the Court of Civil Judge Senior Division, Gangavathi.

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Shri A.R.Patil, learned counsel for petitioner submits that the petitioner is residing at Basapattana village in Gangavathi taluk and her husband has filed the petition for divorce before the Family Court at Gadag.

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Next, he submitted that the petitioner is not able to go to Gadag 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 Gadag 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 Gadag 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, Gadag, to the Court of Civil Judge Senior Division, Gangavathi.

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Heard the contentions urged on behalf of petitioner 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.117/2020,

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pending on the file of Principal Judge, Family Court at Gadag be transferred to the Court of Civil Judge Senior Division, Gangavathi?

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It is not in dispute that petitioner and respondent are husband and wife. Their marriage was performed on 21.12.2018 in Neelagund village of Gadag taluk. They lived

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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.117/2020 wherein he has sought the aid of the Court seeking divorce. He has chosen the Forum of Family Court at Gadag. 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 Gangavathi 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 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 Gangavathi. 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 Gadag.

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

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M.C.No.117/2020 pending on the file of Principal Judge, Family

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Court at Gadag, to the Court of Civil Judge Senior Division, Gangavathi.

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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.117/2020, pending on the file of Principal Judge, Family Court at Gadag, to the Court of Civil Judge Senior Division, Gangavathi.

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If video conferencing provision is available, the respondent is at liberty to appear through video conferencing.

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Sd/JUDGE

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MRK

Smt. Chaitra (Shivaganga) W/O. Mylarappa Barker v. Sri. Mylarappa B Barker

Case brief

What is this about?

What did the court decide?

Smt. Chaitra (Shivaganga) W/O. Mylarappa Barker v. Sri. Mylarappa B Barker

Case brief

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What did the court decide?

What the court decided

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