Bushra Unnisa vs Syed Yassar

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

This Transfer Civil Miscellaneous Petition is filed under Section 24 of the Civil Procedure Code, 1908 (for short ‘CPC’) by the petitioner-wife against the respondent-husband seeking for transfer of HMOP No.271 of 2022 from the file of Senior Civil Judge at Godavarikhani to the Court of Senior Civil Judge at Jayashankar-Bhoopalapalli.

The learned Counsel for the petitioner submits that marriage of the petitioner with the respondent was solemnized on 15.05.2014 at Arepalli village of Tekumatla Mandal of Jayashankar-Bhoopalapalli District as per the customs prevailing in their community. Immediately after the marriage the petitioner joined the company of the respondent and lead happy marital life, but they did not begot any children, therefore the respondent and his family members started harassing the petitioner on that ground and unable to bear the same the petitioner is residing at her parental home at Arepalli village. Thereafter the petitioner filed a complaint in Tekumatla Police Satiation which was registered as a case in Crime No.51 of 2022 under Sections 498-A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act. Apart from the criminal case the petitioner also filed M.C.No.14 of 2022 and a case under Domestic Violence Act vide DVC No.29 of 2022 and both the said cases are pending before the Judicial Magistrate of First Class, Jayashankar-Bhoopalapalli.

The learned Counsel for the petitioner further submits that the respondent also filed HMOP No.271 of 2022 on the file of Senior Civil Judge at Godavarikhani seeking for Divorce. As the distance between the parental home of the petitioner and Godavarikhani is about 100 KMs and she is facing difficulty both financially and physically to attend the proceedings in HMOP No.271 of 2022 at Godavarikhani filed by the respondent and it would be convenient to her if the said HMOP No.271 of 2022 is transferred to the Court of Senior Civil Judge at Jayashankar-Bhoopalapalli and other two cases filed by the petitioner are also pending at Jayashankar-Bhoopalapalli requested to allow the Transfer Civil Miscellaneous Petition.

On the other hand, the learned Counsel for the respondent basing on the counter submits that the petitioner is not residing with her parents at Arepally as stated by her in the affidavit and in fact the petitioner is working as a Teacher at Bowenpally Area and residing at Hyderabad only and there are no grounds in the Transfer Petition and requested to dismiss the Transfer Civil Miscellaneous Petition.

After hearing both sides and upon perusing the record this Court is of the considered view that the petitioner and the respondent are wife and husband respectively and their marriage was solemnized on 15.05.2014 and in view of disturbances between the spouses the petitioner started living at her parental home at Arepally village. Thereafter the petitioner filed a criminal case against the respondent and his family members in Tekumatla Police Satiation which is registered as Crime No.51 of 2022 under Sections 498-A of Indian Penal Code and Section 3 and 4 of Dowry Prohibition Act. Apart from the said criminal case the petitioner also a Domestic Violence Act in DVC No.29 of 2022 and a Maintenance case in MC No. 14 of 2022 and both the said cases are pending on the file of Judicial Magistrate of First Class, Jayashankar-Bhoopalapalli. Now, the petitioner being wife filed the present Transfer Civil Miscellaneous Petition seeking to transfer the HMOP No.271 of 2022 from the file of Senior Civil Judge, Godavarikhani to the Jayashankar-Bhoopalapalli on the premise that it would be convenient for her both physically and financially to attend the proceedings if the HMOP No.271 of 2022 filed by the respondent is transferred from Godavarikhani to Jayashankar-Bhoopalapalli where the cases filed by the petitioner are pending.

It is settled law that in the transfer proceedings of matrimonial disputes the convenience of the wife is to be preferred over the convenience of the husband, therefore the request of the petitioner-wife is to be considered. The Hon’ble Supreme Court in NCV Aishwarya Vs A.S.Saravana Karthik Sha 2022 SCC Online SC 1199 held as follows:

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

Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions”.

In view of the law laid down by the Hon’ble Supreme Court, the Transfer Civil Miscellaneous Petition is allowed. HMOP No.271 of 2022 is withdrawn from the file of Senior Civil Judge, Godavarikhani and transferred to the Court of Senior Civil Judge at Jayashankar-Bhoopalapalli, for disposal in accordance with law.

The learned Senior Civil Judge, Godavarikhani shall transmit the entire record of HMOP No.271 of 2022 duly indexed within one month from the date of receipt of copy of this order. There shall be no order as to costs.

As a sequel, interlocutory applications, if any pending in Transfer CMP shall stand closed.