Smt Swathi T N Vs Sri Amar B K

SMT. SWATHI T. N. W/O AMAR B. K., D/O NAGARAJ SETTY T. V., AGED ABOUT 33 YEARS, RESIDING AT NO.349, SAPTHAGIRI OFF SET PRINTERS, TANK ROAD, BANGARPET BANGARPETE TOWN, KOLAR DISTRICT - 563114.

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…PETITIONER

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(BY SRI. R. V. SHIVANANDA REDDY, ADVOCATE)

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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AND:

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SRI. AMAR B. K. S/O SRI. KESHAVAMURTHY B.S., AGED ABOUT 36 YEARS, R/AT NO.9, MARUTHI NILAYA, 5^TH CROSS, KODIPALYA POST, KENGERI, BENGALURU - 560060.

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…RESPONDENT

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(BY SRI. BASAVARAJU, ADVOCATE)

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THIS CP IS FILED UNDER SECTION 24 OF CPC, PRAYING TO TRANSFER THE MATTER IN MC NO.2607/2024 PENDING ON THE FILE OF THE 2^ND

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HC-KAR

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ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT BENGALURU TO SENIOR CIVIL JUDGE AND JMFC, AT BANGARPET, KOLAR DISTRICT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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The present petition is filed by the wife seeking to withdraw and transfer MC.No.2607/2024 instituted by the respondent-husband seeking restitution of conjugal rights,

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pending on the file of the II Additional Principal Judge, Family Court, Bengaluru to the Senior Civil Judge and JMFC at Bangarpet, Kolar District.

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Heard learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

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Learned counsel for the petitioner submits that the petitioner is presently residing in Bangarpet, along with her minor child, who is aged about 6 years 11

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HC-KAR

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months. She is staying in her parental house. The distance between Bangarpet and Bengaluru is approximately 90 kilometers, causing hardship and inconvenience to her, in attending the proceedings initiated by her husband at Bengaluru. It is submitted that earlier the petitioner-wife had filed CP.No.357/2019 seeking to transfer MC.No.2736/2018, which was filed by the respondenthusband for restitution of conjugal rights at the Family Court, Bengaluru, to be transferred to the K.G.F. in Kolar District. This Court vide order dated 28.02.2020, allowed the civil petition and transferred MC.No.2736/2018 to the Principal Senior Civil Judge and CJM at K.G.F., Kolar District. After the transfer, the respondent has withdrawn the said MC.No.2736/2018 and has now again filed another matrimonial petition in MC.No.2607/2024 on the same ground, before the Family Court, Bengaluru. The conduct of the respondent is malafide and with an intention to see that the petitioner does not get the

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maintenance awarded in the criminal miscellaneous which

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is pending before the Court at Bangarpet.

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Per contra , learned counsel for the respondent

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submits that if transfer is made as sought by the petitioner, the respondent would be put to untold hardship and inconvenience. It is submitted that the petitioner has made out no bonafide grounds for transfer and sought for dismissal of the petition.

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The marriage between the petitioner and respondent was solemnized on 12.05.2014, as per the customs prevailing in their community. From the wedlock, a child is born, who is now aged about 6 years 11 months and is under the care and custody of the petitioner-wife who is residing at Bangarpet. The respondent-husband had filed MC.No.2736/2018 by invoking Section 9 of the Hindu Marriage Act, 1955 before the Family Court at Bengaluru. The petitioner-wife had filed CP.No.357/2019 seeking for transfer of the said MC.No.2736/2019, making

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a ground of inconvenience and this Court allowed the petition and transferred MC.No.2736/2018 to the Principal Senior Civil Judge and CJM, at KGF, Kolar District.

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After the transfer, the respondent has withdrawn the said MC petition and has filed another petition in MC.No.2607/2024 on the same ground of restitution of conjugal rights before the Family Court at Bengaluru. The conduct of the respondent indicates that the respondent is harassing the petitioner on one ground or the other, and not appearing in the proceedings of criminal miscellaneous which has been filed by the petitioner seeking maintenance.

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The cardinal principle reiterated in catena of judgments in line, is that in matrimonial cases where the wife seeks transfer by invoking Section 24 of CPC, the convenience of the wife is paramount concern, rather than the inconvenience that may be caused to the husband.

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HC-KAR

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The Apex Court in the case of Sumita Singh vs. Kumar Sanjay and another¹ , held that in matrimonial matters, the convenience of the wife has to be taken into consideration. In similar circumstances, the Apex Court in the case of N.C.V. Aishwarya Vs.

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A.S.Saravana Karthik Sha² (Aishwarya) has held at para

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No.9 which reads as under:

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“9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the

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1 AIR 2002 SC 396

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2 Civil Appeal No.4894/2022

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Indian society, generally, it is the wife’s convenience which must be looked at while considering transfer.”

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The petitioner is residing at Bangarpet. She has

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a minor child, who is aged about 6 years 11 months. The travel distance between Bangarpet and Bengaluru is around 90 to 95 kilometers. In the earlier round, the proceeding was allowed on the ground of inconvenience caused to the petitioner-wife and the petitioner has made out the case for transfer.

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9. For the foregoing reasons, this Court pass the

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following:

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ORDER

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i) The Civil Petition is allowed.

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ii) MC.No.2607/2024 pending on the file of the II Additional Principal Judge, Family Court, Bengaluru is withdrawn and transferred to the Senior Civil Judge and JMFC at Bangarpet.

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