Allowed

Smt Radhabai W/O Kenchappa Talawar Alias Bhavati v. Shri Kenchappa S/O. Basavantappa Talawar Alias Bhavati

Karnataka HC12 Dec 2022CP/100172/2022

Case brief

AI extract

What is this about?

Permitting transfer of a matrimonial suit under Section 24 CPC from a forum where the husband filed for divorce to a court where the wife resides, citing her financial inability to travel and convenience.

What did the court decide?

Transfer of M.C.No.14/2021 from Senior Civil Judge and JMFC, Hangal to Principal Judge Family Court, Haveri.

Smt Radhabai W/O Kenchappa Talawar Alias Bhavati… — Maintenance and Alimony | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH 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.100172 OF 2022

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BETWEEN:

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SMT.RADHABAI W/O KENCHAPPA TALAWAR @ BHAVATI AGE: 32 YEARS, OCC: HOUSE WIFE C/O: SMT.SHANTAVVA W/O MARIYAPPA SOMANKATTI R/O: CHIKKALINDHALLI TQ. & DIST.: HAVERI – 581 110. …PETITIONER

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(BY SMT.GIRIJA S.HIREMATH., ADVOCATE)

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AND:

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SRI.KENCHAPPA S/O BASAVANTAPPA TALAWAR @ BHAVATI AGE: 37 YEARS, OCC: COOLIE R/O: TILAVALLI, TQ: HANGAL DIST: HAVERI – 581 101. …RESPONDENT (BY SRI.S.S.DODDALINGANNAVAR., ADVOCATE)

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THIS CIVIL PETITION IS FILED UNDER SECTION 24 OF THE CODE OF CIVIL PROCEDURE TO TRANSFERRING M.C.NO.14/2021 PENDING ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, HANGAL TO PRINCIPAL JUDGE FAMILY COURT, HAVERI.

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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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Smt.Girija S.Hiremath., learned counsel for the petitioner has 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 03.02.2012 at Hangal Taluka, Tilavalli Gram as per rights and customs of Hindu law. From wedlock, they have two minor children. They lived blissfully for some time. Due to difference in opinions and misunderstandings, the respondent was constrained to file a petition seeking divorce before the Senior Civil Judge and JMFC, Hangal in M.C.No.14/2021.

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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.14/2021 from the Court of Senior Civil Judge and JMFC, Hangal to the Principal Judge Family Court, Haveri.

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Smt.Girija S.Hiremath., learned counsel for the petitioner submits that the petitioner is residing in Haveri and her husband has filed the petition for divorce before the Senior Civil Judge and JMFC, Hangal.

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Next, she submitted that the petitioner is not able to go to Hangal 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 Hangal 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 two 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 Hangal 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 Senior Civil Judge and JMFC, Hangal to the Principal Judge Family Court, Haveri.

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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 paper with care.

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The short question which would arise for consideration is whether the case in M.C.No.14/2021 pending on the file of Senior Civil Judge and JMFC, Hangal be transferred to the Principal Judge Family Court, Haveri?

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It is not in dispute that petitioner and respondent are husband and wife. Their marriage was solemnized on 03.02.2012 at Hangal Taluka, Tilavalli Gram as per rights and customs of Hindu law. From wedlock, they have two minor children. They

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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 petition in M.C.No.14/2021 wherein he has sought the aid of the Court seeking divorce. He has chosen the Forum of Senior Civil Judge and JMFC, Hangal. 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 Haveri 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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Two 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 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

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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 in Haveri. 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 Hangal.

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

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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 M.C.No.14/2021 pending on the file of Senior Civil Judge and JMFC, Hangal to the Principal Judge Family Court, Haveri.

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In the result, the Civil Petition succeeds and it is

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accordingly allowed .

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This Court directs to transfer M.C.No.14/2021 pending on the file of Senior Civil Judge and JMFC, Hangal to the Principal Judge Family Court, Haveri.

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If video conferencing provision is available, the respondent

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is at liberty to appear through video conferencing.

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