Sri Basavaraj R Mudabagil Vs Smt Bharatambe B Mudabagil

SRI. BASAVARAJ R. MUDABAGIL SON OF LATE SRI. RUDRAPPA B. MUDABAGIL, AGED 55 YEARS, RESIDING AT: BELLI CHUKKI, 50 (1694), 18^TH CROSS, 21^ST MAIN, M.C. LAYOUT, VIJAYANAGAR, BENGALURU-560 040

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…PETITIONER

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(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. BHARATAMBE B. MUDABAGIL WIFE OF SRI. BASAVARAJ R. MUDABAGIL, AGED 52 YEARS, RESIDING AT: FLAT NO.20/21, DATTATREYA GULLI, MADHAVPUR VADAGAON, BELAGAVI-590 005

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SRI. ZENITH AADIANTH B. MUDABAGIL SON OF SRI. BASAVARAJ R. MUDABAGIL, AGED 20 YEARS, RESIDING AT FLAT NO.20/21, DATTATREYA GULLI, MADHAVPUR VADAGAON, BELAGAVI-590 005

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…RESPONDENTS

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HC-KAR

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(BY SRI. CHANDRAKANTH R GOULAY, ADVOCATE FOR RESPONDENT NO.1;

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NOTICE IS SERVED ON RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 24 OF THE CODE OF CIVIL PROCEDURE, 1908 AND SECTION 407 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO TRANSFER THE TWO CASES AT BELAGAVI TO THE COURTS AT BENGALURU, NAMELY, TO TRANSFER THE CASE IN CRL.MISC.233/2017 ON THE FILE OF THE FAMILY COURT AT BELAGAVI TO THE FAMILY COURT AT BENGALURU AND FURTHER TO DIRECT THAT THE SAID CASE BE TRIED TOGETHER WITH O.S.NO.387/2019 ON THE FILE OF THE I ADDITIONAL FAMILY COURT AT BENGALURU AND TO TRANSFER THE CASE IN CRL.MISC.181/2019 ON THE FILE OF THE JUDICIAL MAGISTRATE, FIRST CLASS-III AT BELAGAVI TO THE COURT OF THE METROPOLITAN MAGISTRATE, TRAFFIC COURT AT BENGALURU.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has sought for transfer of Crl. Misc. No.233/2017 pending consideration before the Family Court at Belagavi, to the Family Court at Bengaluru and to further direct that the said case be tried together with O.S. No.387/2019, which is pending consideration before the I Additional Principal Judge, Family Court, Bengaluru and transfer Crl. Misc. No.181/2019 on the file of the Judicial Magistrate First ClassIII, Belagavi to the Court of the Metropolitan Magistrate, Traffic Court at Bengaluru.

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Briefly put, the facts are that the petitioner and respondent No.1 were married on 22.11.1996 at Bengaluru. They have two children, one of whom is with the petitioner and the other is with respondent No.1. In the year 2016, the respondent No.1 filed Crl. Misc. No.84/2016 alleging acts of domestic violence and the same was pending consideration before the Metropolitan Magistrate Traffic Court-V, Bengaluru.

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She filed a case in PCR No.4686/2016 on the file of the XXIV Additional Chief Metropolitan Magistrate, Bengaluru, which was

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HC-KAR

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referred for investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C’) and the jurisdictional Police registered Crime No.9045/2016. She also filed O.S. No.121/2016 before the IV Additional Principal Judge, Family Court, Bengaluru. The respondent No.1 thereafter withdrew all the cases and went back to her matrimonial home and started residing with the petitioner. Later, on 12.04.2017, the respondent No.1 took respondent No.2 with her and went to Belagavi after filing a report before the Vijayanagar Police Station. She thereafter filed Crl. Misc. No.233/2017 on the file of the Family Court, Belagavi. She also filed O.S No.387/2019 before the I Additional Family Court, Bengaluru, for partition of the property belonging to the petitioner. She also filed Crl.Misc. No.181/2019 before the Judicial Magistrate First Class-III (JMFC-III), Belagavi.

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(ii). The petitioner contends that he is diagnosed with Diabetes Mellitus Type-2 in the year 2006 and has been ailing from heart related ailments after suffering a heart attack in the year 2008. He was also infected with COVID-19 virus in March 2021. He, therefore, contends that he was forced to travel to Belagavi where he did not know anyone except the family of his

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HC-KAR

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wife and he engaged an Advocate to represent him before the JMFC-III, Belagavi, in Crl. Misc. No.181/2019. The petitioner is, therefore, before this Court seeking for a direction for transfer of Crl. Misc. No.233/2017 pending consideration before the Family Court at Belagavi to the Family Court at Bengaluru and to further direct that the said case be tried together with O.S. No.387/2019, which is pending consideration before the I Additional Principal Judge, Family Court, Bengaluru and transfer Crl. Misc. No.181/2019 on the file of the Judicial Magistrate First Class-III, Belagavi to the Court of the Metropolitan Magistrate, Traffic Court at Bengaluru.

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Learned counsel for the petitioner submitted that O.S.No.387/2019 was filed by the respondent No.1 before the I Additional Principal Judge, Family Court, Bengaluru and therefore, there was no reason for her to file Crl. Misc. No.233/2017 before the Family Court, Belagavi and Crl. Misc. No.181/2019 before the JMFC-III Court at Belagavi. He contends that the petitioner is presently undergoing dialysis and therefore, is not in a position to visit the Court at Belagavi and his condition is critical as per the advice of the treating Doctor. He, therefore, contends that appropriate orders be

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HC-KAR

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passed transferring Crl. Misc. No.233/2017 pending consideration before the Family Court at Belagavi to the Family Court at Bengaluru and to further direct that the said case be tried together with O.S. No.387/2019, which is pending consideration before the I Additional Principal Judge, Family Court, Bengaluru and transfer Crl. Misc. No.181/2019 on the file of the Judicial Magistrate First Class-III, Belagavi to the Court of the Metropolitan Magistrate, Traffic Court at Bengaluru.

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Per contra, the learned counsel for the respondent No.1 submits that the petitioner has not been paying any maintenance to the respondent No.1. He contends that the respondent No.1 is residing at Belagavi and that she is contemplating steps to get O.S. No.387/2019 transferred to the Court at Belagavi. He also contends that the respondent No.1 who is also aged 55 years, cannot travel to Bengaluru as she has no means to travel to Bengaluru and stay in Bengaluru and to attend Court hearings. He, therefore, contends that no useful purpose would be served in transferring the proceedings to Bengaluru.

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HC-KAR

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When this petition was listed for orders, this Court queried the learned counsel for the petitioner as to whether the maintenance was paid to the respondent No.1 herein as ordered by the Family Court, Belagavi. Learned counsel submitted that no maintenance is ordered. When this Court queried the learned counsel for the petitioner as to whether the petitioner would be willing to pay the cost of travel of the respondent No.1 from Belagavi to Bengaluru and expenses for her accommodation, learned counsel submitted that the petitioner is dependent on his son and therefore, he is in no position to pay any amount to the respondent No.1 for the travel and accommodation. This Court also queried the learned counsel for the petitioner as to whether any maintenance was ordered by Family Court, Belagavi, to which he submitted that no maintenance is claimed by the respondent No.1 herein or ordered by the Family Court in Belagavi.

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It is no doubt true that the respondent No.1 had filed O.S. No.387/2019 before the I Additional Principal Judge, Family Court, Bengaluru claiming a share in the properties of the petitioner. It is also true that after filing O.S. No.387/2019, the respondent No.1 has filed Crl. Misc. No.181/2019 before

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HC-KAR

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the JMFC-III Court, Belagavi and prior to that, she had filed Crl. Misc No.233/2017 before the Family Court at Belagavi. In view of the peculiar situation where the petitioner has refused to pay the cost for the respondent No.1 to travel from Belagavi to Bengaluru and also to meet the expenses of her accommodation in Bengaluru, this Court is not convinced about the conduct of the petitioner. The claim of the petitioner that he is suffering from kidney related ailments and he is on dialysis, though is supported by some bills issued by Fortis Hospital, there is no actual proof of the petitioner being advised to undergo dialysis. There is also no material document issued by any medical practitioner advising the petitioner to undergo dialysis. The respondent No.1 is also now aged about 55 years and she cannot be expected to travel from Belagavi to Bengaluru to attend the Court hearings. In that view of the matter, this is not a fit case for this Court to exercise jurisdiction under Article 227 of the Constitution of India to transfer the case/s from Courts at Belagavi to Courts at Bengaluru as sought by the petitioner in this petition.

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HC-KAR

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Consequently, the petition is dismissed. It is,

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however, open for the petitioner to participate in the proceedings of the Court through video conference.

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In view of disposal of the petition, the Principal Judge, Family Court at Belagavi, Judicial Magistrate First ClassIII Court at Belagavi and the I Additional Principal Judge, Family Court, Bengaluru, are directed to consider and dispose off the proceedings in Crl. Misc. No.233/2017, Crl. Misc. No.181/2019 and O.S. No.387/2019 respectively, as early as possible at any rate within a period of six months from the date of receipt of a certified copy of this order.

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Sd/(R. NATARAJ) JUDGE

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SMA/List No.: 1 Sl No.: 4

Sri Basavaraj R Mudabagil v. Smt Bharatambe B Mudabagil

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Sri Basavaraj R Mudabagil v. Smt Bharatambe B Mudabagil

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