Gangavarapu @ Gurindapalli Nissi vs Gangavarapu Ravindra Babu

Kongara Vijaya Lakshmi, J

This transfer petition is filed seeking to transfer DOP No.1 of 2021 on the file of the VI Additional District Judge‟s Court, Markapur to the Court of the Judge, Family Court, Guntur.

Case of the petitioner is that, the respondent is her husband and their marriage was performed on14.10.2010 at Baptist church, Mission Compound, Podili Town as per the Christian rites and they were blessed with a female child on 30.06.2014; the respondent started harassing the petitioner and necked out the petitioner from matrimonial home and the petitioner is staying with her old aged parents at Guntur; she filed MC No.192 of 2021 on the file of the Family Court, Guntur seeking maintenance against the respondent; while so, the respondent filed DOP No.1 of 2021 under Section 10(1)(IX) (X) of Indian Divorce Act, 1869 seeking divorce; it is highly difficult to travel all the way from Guntur to Markapur for each and every adjournment with the child and there is imminent danger to her life and hence, she filed the present petition seeking transfer of DOP from Markapur to the Court of the Family Court, Guntur.

Even though notice was sent to the respondent and the counsel for the respondent in DOP No.1 of 2021, notice sent to the respondent was returned with an endorsement that the addressee left the place and the notice sent to the counsel for the respondent was served on the counsel on 30.07.2021. Thereafter, counsel for the petitioner took out notice by way of substituted service, by way of publication in Eenadu news paper on 09.01.2022 in Prakasam District. In spite of the same, none appeared for the respondent.

When the transfer CMP came up for admission on 05.05.2021, this court granted interim stay of all further proceedings in DOP No.1 of 2021 on the file of the VI Additional District Judge, Markapur.

Heard Sri PenumakaVenkata Rao, learned counsel for the petitioner and perused the record.

The number of divorce and related matters are increasing day by day for various reasons and in such matters both the spouses may face genuine difficulties. The spouse against whom the transfer proceeding is instituted would face hardship and inconvenience by being required to commute to a distant court, while the spouse who has instituted the original proceeding may genuinely suffer grave inconvenience if the proceeding is transferred to a distant court within whose jurisdiction the other spouse resides. Hence, the transfer matters have to be decided basing on the facts of each case.

In Bhuwan Mohan Singh v. Meena ((2015) 6 SCC 353, the Hon‟ble Supreme Court referred to the decision in „K.A. Abdul Jaleel vs. T.A.Shahida (2003) 4 SCC 166 and laid stress on securing speedy settlement of disputes relating to marriage and family affairs. The Hon‟ble Supreme Court in the said case held as follows:

“It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow.”

In ‘Shamima Farooqui v. Shahid Khan’ (2015) 5 SCC 705, the Hon‟ble Supreme Court held as follows:

“When the aforesaid anguish was expressed, the predicament was not expected to be removed with any kind of magic. However, the fact remains, these litigations can really corrode the human relationship not only today but will also have the impact for years to come and has the potentiality to take a toll on the society. It occurs either due to the uncontrolled design of the parties or the lethargy and apathy shown by the Judges who man the Family Courts. As far as the first aspect is concerned, it is the duty of the courts to curtail them. There need not be hurry but procrastination should not be manifest, reflecting the attitude of the court. As regards the second facet, it is the duty of the court to have the complete control over the proceeding and not permit the lis to swim the unpredictable grand river of time without knowing when shall it land on the shores or take shelter in a corner tree that stands “still” on some unknown bank of the river. It cannot allow it to sing the song of the brook. “Men may come and men may go, but I go on forever.” This would be the greatest tragedy that can happen to the adjudicating system which is required to deal with most sensitive matters between the man and wife or other family members relating to matrimonial and domestic affairs. There has to be a proactive approach in this regard and the said approach should be instilled in the Family Court Judges by the Judicial Academies functioning under the High Courts. For the present, we say no more.”

In ‘Vandana Sharma v. Rakesh Kumar Sharma’ (2008) 11 SCC 768, the Hon‟ble Supreme Court taking note of the fact that the wife had two minor daughters and appreciating the difficulty, thought it appropriate to transfer the case.

In ‘Neelam Bhatia vs. Satbir Singh Bhatia (2004) 13 SCC 436, the Hon‟ble Supreme Court, when the wife sought transfer of a case and husband resisted the petition stating that the case is at the stage of evidence and pleadings were also completed, declined to transfer the case and directed the husband to bear the to-and-fro travelling expenses of the wife and one person accompanying her by train whenever she actually appeared before the Court. The Hon‟ble Supreme Court also directed payment of incidental expenses on the date of hearing in addition to the train fare.

In ‘Sumita Singh Vs. Kumar Sanjay (2001) 10 SCC 41’, when the wife sought transfer of a case filed by the husband on the ground that she is unable to travel up and down from Delhi to Ara, to defend the matrimonial proceedings and that she has no one with whom she can stay in Ara because her parents are residents of Gurgaon; even though wife is an educated woman and doing very well and husband is unemployed Hon‟ble Supreme Court held that it is the wife‟s convenience that must be looked at and the circumstances indicated are sufficient to allow the transfer petition.

In ‘Sangeeta Alias Shreya vs. Prasant Vijay Wargiya 2004 13 SCC 407’, wife filed transfer petition on the ground that she has 2½ years old child, that she has no source of income, and that the wife is not in a position to travel alone. The husband therein took a plea that he has no income and he is apprehending threats to his life and liberty if he is made to go to Kota, Rajasthan, the place where wife is seeking transfer of matrimonial case. In the said case the Hon‟ble Supreme Court held as follows:

“We are still living in a civilised society. We see no substance in the submission that there would be danger to his life if he attends the Court at Kota and if any threat is given, the respondent can always complaint to that Court and we are sure that his, if one made, will be considered on its merit. Between a husband and a wife, the convenience of the wife must prevail particularly when the wife has a 2½ years old child”.

As seen from the affidavit filed by the petitioner in support of the transfer CMP, it is stated that the respondent used to harass the petitioner physically and mentally and finally, he drove out the petitioner and she is staying with her old aged parents at Guntur. Admittedly, the respondent is a native of Markapur of Prakasam District and the petitioner is residing at Guntur and it will take four hours for her to attend the Court. Further, as the petitioner is a lady with a child, it is difficult for her to attend the Court at Markapur without the assistance of her parents. The Hon‟ble Supreme Court repeatedly held that in transfer proceedings between the husband and wife, the convenience of the wife is of paramount importance and in the present case, in spite of publication of notice, respondent did not chose to contest the present petition.

In view of the facts and circumstances of the case and in the light of the above referred judgments of the Hon‟ble Supreme Court, DOP No.1 of 2021 on the file of the VI Additional District Judge‟s Court, Markapur is withdrawn from the said Court and transferred to the Judge, Family Court, Guntur, to be tried in accordance with law. However, the trial Court is directed not to insist the appearance of the respondent except when his presence is necessary for disposal of the DOP.

The transfer CMP is, accordingly, disposed of. No order as to costs. Miscellaneous petitions, if any, pending in this petition, shall stand closed.